Quazer v Secure Funding Pty Ltd - [2010] QCA 251

SUPREME COURT OF QUEENSLAND

CITATION:

Quazer v Secure Funding Pty Ltd [2010] QCA 251

PARTIES:

ROBERT CHARLES QUAZER
(first defendant/appellant)
KAT QUAZER
(second defendant/not party to the appeal)
v
SECURE FUNDING PTY LTD (ALSO KNOWN AS LIBERTY FUNDING PTY LTD)
ACN 081 982 872
(plaintiff/respondent)

FILE NO/S:

Appeal No 4043 of 2010
SC No 9617 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 September 2010

DELIVERED AT:

Brisbane

HEARING DATE:

2 August 2010

JUDGES:

McMurdo P, White JA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The appellant, Robert Charles Quazer's, oral application to adjourn the proceedings to serve notices under s78B Bankruptcy Act 1903 (Cth) is refused.

2.    The respondent to this appeal, Secure Funding Pty Ltd, is granted leave under Uniform Civil Procedure Rules r 72 to proceed against the appellant bankrupt, Robert Charles Quazer.

3.    The appeal is dismissed with costs.

4.    The appellant, Robert Charles Quazer's, application filed on 31 May 2010 to join Britta Freymann as an appellant is refused with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – respondents applied for leave under r 72(1)(a) Uniform Civil Procedure Rules 1999 (Qld) (UCPR) to proceed against appellant and for summary dismissal of appeal and application to join second defendant to appeal – appellant bankrupt before instituting appeal – trustees in Bankruptcy did not consent to appeal – whether application for summary dismissal should be granted – whether the appeals should be dismissed

PROCEDURE – COURTS AND JUDGES – GENERALLY – COURTS – ADJOURNMENT – day of hearing, appellant applied for adjournment of six weeks – adjournment sought to serve various Attorneys-General with notices as required under s 78B Judiciary Act 1903 (Cth) – whether adjournment ought to be granted

Bankruptcy Act 1966 (Cth), s 60
Judiciary Act 1903 (Cth), s 78 B
Uniform Civil Procedure Rules 1999 (Qld), r 72

Beames v State of Queensland [2010] QSC 4, applied
Glennan v Commissioner of Taxation (2003) 198 ALR 250; [2003] HCA 31, cited
Re Finlayson; ex parte Finlayson (1997) 72 ALJR 73, cited

COUNSEL:

The appellant appeared on his own behalf
P A Schmidt for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Norton Rose for the respondent

[1] McMURDO P: There are two applications for this Court's determination. The first is brought by the appellant, Robert Charles Quazer, who is self-represented. He has applied to join Britta Freymann as second appellant to this appeal under Uniform Civil Procedure Rules (UCPR) r 750 and r 751. Ms Freymann supports Mr Quazer's application.

[2] Mr Quazer was declared a bankrupt on 18 March 2010 and remains undischarged from that order. One of the joint and several trustees of Mr Quazer's bankrupt estate, Mr John Shanahan of KordaMentha,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] QCA 251
Decision Date: 17 September 2010

CaseChat Overview and Summary

Robert Charles Quazer, the appellant, appealed against the decision of the trial judge, seeking to challenge the summary dismissal of his appeal against Secure Funding Pty Ltd, the respondent. The dispute originated from a trial where Quazer sought to appeal the summary dismissal of his claim against the respondent. The appeal was heard in the Queensland Court of Appeal, which had to determine whether the respondents could proceed against the appellant and whether the appeal should be summarily dismissed. The court was also asked to decide whether Quazer should be granted leave to join Britta Freymann as an appellant.

The court was required to address several legal issues, including whether the respondents should be granted leave to proceed against Quazer and for summary dismissal of the appeal. Additionally, the court had to consider whether Quazer should be allowed to join Freymann as an appellant. The court also needed to determine whether Quazer's application for an adjournment to serve notices under section 78B of the Bankruptcy Act 1903 should be granted.

In its reasoning, the court found that Quazer's application for an adjournment to serve notices under the Bankruptcy Act was refused as it was not a sufficient ground for an adjournment. The court granted the respondents leave to proceed against Quazer and dismissed the appeal with costs. The court also refused Quazer's application to join Freymann as an appellant, again awarding costs against him. The reasoning behind these decisions was based on the procedural requirements and the lack of consent from the trustees in bankruptcy for Quazer to pursue the appeal.

The final orders of the court were that Quazer's application for an adjournment was refused. Secure Funding Pty Ltd was granted leave to proceed against Quazer under the Uniform Civil Procedure Rules. The appeal was dismissed with costs awarded to the respondent. Finally, Quazer's application to join Freymann as an appellant was refused, and costs were also awarded against him for this application.

Orders

Orders of the court

1. The appellant, Robert Charles Quazer's, oral application to adjourn the proceedings to serve notices under s78B Bankruptcy Act 1903 (Cth) is refused.

2. The respondent to this appeal, Secure Funding Pty Ltd, is granted leave under Uniform Civil Procedure Rules r 72 to proceed against the appellant bankrupt, Robert Charles Quazer.

3. The appeal is dismissed with costs.

4. The appellant, Robert Charles Quazer's, application filed on 31 May 2010 to join Britta Freymann as an appellant is refused with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Quazer v Secure Funding Pty Ltd [2010] QCA 251
PARTIES:	ROBERT CHARLES QUAZER (first defendant/appellant) KAT QUAZER (second defendant/not party to the appeal) v SECURE FUNDING PTY LTD (ALSO KNOWN AS LIBERTY FUNDING PTY LTD) ACN 081 982 872 (plaintiff/respondent)
FILE NO/S:	Appeal No 4043 of 2010 SC No 9617 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 September 2010
DELIVERED AT:	Brisbane
HEARING DATE:	2 August 2010
JUDGES:	McMurdo P, White JA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	*1. The appellant, Robert Charles Quazer's, oral application to adjourn the proceedings to serve notices under s78B Bankruptcy Act* 1903 (Cth) is refused. 2. The respondent to this appeal, Secure Funding Pty Ltd, is granted leave under Uniform Civil Procedure Rules r 72 to proceed against the appellant bankrupt, Robert Charles Quazer. 3. The appeal is dismissed with costs. 4. The appellant, Robert Charles Quazer's, application filed on 31 May 2010 to join Britta Freymann as an appellant is refused with costs.**
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – respondents applied for leave under r 72(1)(a) Uniform Civil Procedure Rules 1999 (Qld) (UCPR) to proceed against appellant and for summary dismissal of appeal and application to join second defendant to appeal – appellant bankrupt before instituting appeal – trustees in Bankruptcy did not consent to appeal – whether application for summary dismissal should be granted – whether the appeals should be dismissed PROCEDURE – COURTS AND JUDGES – GENERALLY – COURTS – ADJOURNMENT – day of hearing, appellant applied for adjournment of six weeks – adjournment sought to serve various Attorneys-General with notices as required under s 78B Judiciary Act 1903 (Cth) – whether adjournment ought to be granted Bankruptcy Act 1966 (Cth), s 60 Judiciary Act 1903 (Cth), s 78 B Uniform Civil Procedure Rules 1999 (Qld), r 72 Beames v State of Queensland [2010] QSC 4, applied Glennan v Commissioner of Taxation (2003) 198 ALR 250; [2003] HCA 31, cited Re Finlayson; ex parte Finlayson (1997) 72 ALJR 73, cited
COUNSEL:	The appellant appeared on his own behalf P A Schmidt for the respondent
SOLICITORS:	The appellant appeared on his own behalf Norton Rose for the respondent