Rich v Auswide Constructions Pty Ltd (No 3) - [2021] QDC 2

DISTRICT COURT OF QUEENSLAND

CITATION:

Rich v Auswide Constructions Pty Ltd (No 3) [2021] QDC 2

PARTIES:

ALEXANDER DAVID WILLIAM RICH

(plaintiff)

v

AUSWIDE CONSTRUCTIONS PTY LTD ACN 114 157 925 as trustee for the Auswide Constructions Trust

(first defendant)

and

GARRY BRAND

(second defendant)

FILE NO/S:

15/19

DIVISION:

Civil

PROCEEDING:

Trial

DELIVERED ON:

21 January 2021

DELIVERED AT:

Brisbane

HEARING DATE:

2, 3, 18 December 2020 (and subsequent written submissions)

JUDGES:

Barlow QC DCJ

ORDER:

1.   The Court declares that the first defendant is the owner of the vessel “Shahzadi”, bearing registration marking HT000Q (“the vessel”).

2.   Upon the defendant paying to the plaintiff the amount of registration fees that the plaintiff has paid for the registration of the vessel in the plaintiff’s name, the plaintiff complete and sign any documents necessary to transfer the registration of the vessel to the defendant and provide those documents to the defendant.

3.   The plaintiff pay the defendant’s costs of the proceeding.

4.   Direct the Registrar to refer copies of the following documents to the Legal Services Commission:

(a)    Mr Rich’s application filed 27 November 2020;

(b)    the affidavit of Mr Rich filed 27 November 2020;

(c)     the affidavit of Mr Arulogun filed 27 November 2020;

(d)    the transcript of the trial;

(e)     my various reasons for decision published in this proceeding, namely Rich v Auswide Constructions Pty Ltd [2020] QDC 327, Rich v Auswide Constructions Pty Ltd (No 2) [2020] QDC 330 and these reasons ([2021] QDC 2).

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – UNREASONABLE REFUSAL OF OFFER – defendant seeks costs on the indemnity basis – plaintiff was successful on the majority of the principal issues in the proceeding, but was ultimately unsuccessful – whether the plaintiff’s rejection of a Calderbank offer was unreasonable in the circumstances prevailing at the time the offer was made

UNQUALIFIED PERSONS AND DISQUALIFIED PRACTITIONERS – ACTING FOR PARTY – leave granted for an unqualified person to act as the plaintiff’s McKenzie friend – McKenzie friend, in preparation for the trial, carried out tasks such as informing the plaintiff of trial processes, resources regarding civil procedure, legal research and editing and drafting of correspondence – McKenzie friend, during the trial, drafted oral submissions for the plaintiff to make, although the plaintiff did not understand the submissions made – whether the McKenzie friend’s conduct warrants investigation by the Legal Services Commission as a potential breach of s 24 of the Legal Profession Act

Legal Profession Act 2007, s 24

Calderbank v Calderbank [1976] Fam Law 93, applied

Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435, applied

Legal Practice Board v Giraudo [2010] WASC 4, considered

Paycorp Payment Solutions Pty Ltd v Chai (No 3) [2011] NSWSC 1632, cited

R v Bow County Court; ex parte Pelling [1999] 4 All ER 751, cited

Velvet…

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: [2021] QDC 2
Decision Date: 21 January 2021

CaseChat Overview and Summary

In the proceeding, Rich brought an action against Auswide Constructions Pty Ltd, asserting claims related to the ownership of a vessel. The case was heard in the Queensland District Court, where the plaintiff, Rich, sought a declaration of ownership of the vessel and sought various remedies including a transfer of registration and payment of costs. The defendant, Auswide Constructions, contested the claims, leading to a comprehensive trial where several issues were addressed.

The primary legal issues before the court involved the ownership of the vessel and the reasonableness of Rich’s refusal of a Calderbank offer made by Auswide Constructions. The court had to determine whether the plaintiff’s rejection of the offer was unreasonable under the circumstances. Additionally, the court considered the conduct of an unqualified person acting as Rich’s McKenzie friend, specifically whether such conduct warranted an investigation for potential breaches of legal professional conduct.

The court held that Auswide Constructions was the rightful owner of the vessel and ordered the transfer of vessel registration to Auswide upon payment of the relevant fees by Auswide to Rich. The court found that Rich’s refusal of the Calderbank offer was unreasonable, leading to an order that Rich pay Auswide’s costs of the proceeding. Furthermore, the court directed the Registrar to refer the conduct of the unqualified McKenzie friend to the Legal Services Commission for potential investigation under the Legal Profession Act.

The final orders included a declaration of Auswide’s ownership of the vessel, a requirement for Rich to complete the vessel registration transfer upon payment of fees, and an order for Rich to pay Auswide’s costs. Additionally, the court directed the Registrar to refer specific documents to the Legal Services Commission for potential investigation into the conduct of the unqualified McKenzie friend.

Orders

Orders of the court

1. The Court declares that the first defendant is the owner of the vessel “Shahzadi”, bearing registration marking HT000Q (“the vessel”).

2. Upon the defendant paying to the plaintiff the amount of registration fees that the plaintiff has paid for the registration of the vessel in the plaintiff’s name, the plaintiff complete and sign any documents necessary to transfer the registration of the vessel to the defendant and provide those documents to the defendant.

3. The plaintiff pay the defendant’s costs of the proceeding.

4. Direct the Registrar to refer copies of the following documents to the Legal Services Commission:

(a) Mr Rich’s application filed 27 November 2020;

(b) the affidavit of Mr Rich filed 27 November 2020;

(d) the transcript of the trial;

(e) my various reasons for decision published in this proceeding, namely Rich v Auswide Constructions Pty Ltd [2020] QDC 327, Rich v Auswide Constructions Pty Ltd (No 2) [2020] QDC 330 and these reasons ([2021] QDC 2).

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:	Rich v Auswide Constructions Pty Ltd (No 3) [2021] QDC 2
PARTIES:	ALEXANDER DAVID WILLIAM RICH (plaintiff) v AUSWIDE CONSTRUCTIONS PTY LTD ACN 114 157 925 as trustee for the Auswide Constructions Trust (first defendant) and GARRY BRAND (second defendant)
FILE NO/S:	15/19
DIVISION:	Civil
PROCEEDING:	Trial
DELIVERED ON:	21 January 2021
DELIVERED AT:	Brisbane
HEARING DATE:	2, 3, 18 December 2020 (and subsequent written submissions)
JUDGES:	Barlow QC DCJ
ORDER:	1. The Court declares that the first defendant is the owner of the vessel “Shahzadi”, bearing registration marking HT000Q (“the vessel”). 2. Upon the defendant paying to the plaintiff the amount of registration fees that the plaintiff has paid for the registration of the vessel in the plaintiff’s name, the plaintiff complete and sign any documents necessary to transfer the registration of the vessel to the defendant and provide those documents to the defendant. 3. The plaintiff pay the defendant’s costs of the proceeding. 4. Direct the Registrar to refer copies of the following documents to the Legal Services Commission: (a) Mr Rich’s application filed 27 November 2020; (b) the affidavit of Mr Rich filed 27 November 2020; (c) the affidavit of Mr Arulogun filed 27 November 2020; (d) the transcript of the trial; (e) my various reasons for decision published in this proceeding, namely Rich v Auswide Constructions Pty Ltd [2020] QDC 327, Rich v Auswide Constructions Pty Ltd (No 2) [2020] QDC 330 and these reasons ([2021] QDC 2).
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – UNREASONABLE REFUSAL OF OFFER – defendant seeks costs on the indemnity basis – plaintiff was successful on the majority of the principal issues in the proceeding, but was ultimately unsuccessful – whether the plaintiff’s rejection of a Calderbank offer was unreasonable in the circumstances prevailing at the time the offer was made UNQUALIFIED PERSONS AND DISQUALIFIED PRACTITIONERS – ACTING FOR PARTY – leave granted for an unqualified person to act as the plaintiff’s McKenzie friend – McKenzie friend, in preparation for the trial, carried out tasks such as informing the plaintiff of trial processes, resources regarding civil procedure, legal research and editing and drafting of correspondence – McKenzie friend, during the trial, drafted oral submissions for the plaintiff to make, although the plaintiff did not understand the submissions made – whether the McKenzie friend’s conduct warrants investigation by the Legal Services Commission as a potential breach of s 24 of the Legal Profession Act Legal Profession Act 2007, s 24 Calderbank v Calderbank [1976] Fam Law 93, applied Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435, applied Legal Practice Board v Giraudo [2010] WASC 4, considered Paycorp Payment Solutions Pty Ltd v Chai (No 3) [2011] NSWSC 1632, cited R v Bow County Court; ex parte Pelling [1999] 4 All ER 751, cited Velvet…