Ruhi v Friskie - [2009] QDC 128

DISTRICT COURT OF QUEENSLAND

CITATION:

Ruhi v Friskie [2009] QDC 128

PARTIES:

HARE LOUIS RUHI

(Appellant/Plaintiff)

v

JULIE-ANNE SAMANTHA FRISKIE

(Respondent/Defendant)

FILE NO/S:

D7/2008

DIVISION:

Civil Jurisdiction

PROCEEDING:

Appeal

ORIGINATING COURT:

Emerald Magistrates Court

DELIVERED ON:

21 May 2009

DELIVERED AT:

Emerald

HEARING DATE:

14 May 2009

JUDGES:

Dearden DCJ

ORDER:

1.      Leave to appeal granted.

2.      Appeal granted.

3.      Decision of learned Magistrate to dismiss the application for summary judgment set aside.

4.      Application for summary judgment granted.

5.      Order that the Respondent, Julie-Ann Friskie, pay the Applicant, Hare Ruhi, the sum of $44, 399.73.

CATCHWORDS:

APPEAL AND HEARING DE NOVO – Appeal from interlocutory hearing - Discretion – Absence of reasons – Appealable error - Approach to review of exercise of discretion

SUMMARY JUDGMENT – uncontested facts – no real prospect of successful defence

CASES:

Bawden v ACI Operations Pty Ltd [2003] QCA 293

Beale v Government Insurance Office of NSW [1997] 48 NSWLR 430

Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1995] QCA 187

Berry v Pinter [2006] QDC 18

Choi v Collansi & Anor [2002] QCA 441

Suncorp Insurance and Finance v Hill [1997] QCA 362

Westpac Banking Corporation v Klef Pty Ltd [1998] QCA 311

Deputy Commissioner of Taxation v Salcedo [2003] QCA 227

LEGISLATION:

Magistrates Court Act 1921 (Qld) ss 45, 47

District Court Act 1967 (Qld) s113

Uniform Civil Procedure Rules 1999 (Qld) r. 262, 292

COUNSEL:

Ms A Murray for the applicant

The respondent appeared on her own behalf

SOLICITORS:

Anne Murray & Co, solicitors for the applicant

The respondent appeared on her own behalf

[1] This is an appeal from the Emerald Magistrates Court dismissing an application for summary judgment by the appellant/plaintiff Hare Ruhi against the respondent/defendant Julie-Anne Friskie, arising out of a contract for the sale/purchase of a property at 14 Moody Street, Emerald.

BACKGROUND

[2] The summary judgment application was heard before the learned Magistrate at Emerald on 3 and 17 June 2008, and a decision was delivered on 18 July 2009. Although there are transcripts on file for the appearances on 3 and 17 June 2008 (at which stage the appellant was legally represented and the respondent was self-represented) there is no transcript of the learned Magistrate’s decision.

[3] The file contains the following hand written notation, apparently under the hand of the Registrar of the Emerald Magistrates Court:
           “18 July 2008 at 9.00 a.m.
           For Plaintiff – N/A
           For Defendant – N/A

I dismiss the application for summary judgment by the plaintiff – I make no order as to costs”.

That notation is followed by a signature (which I assume is that of the Registrar). Underneath is the handwritten word “Registrar”.

[4] A Notice of Appeal was filed on 30 July 2008, on the following grounds:

The learned Magistrate was wrong in law in finding a triable issue and in dismissing the plaintiff’s application;

The learned Magistrate failed to deliver any or adequate reasons for finding a triable issue. The appellant seeks a hearing de…

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.

Continue reading Ruhi v Friskie

Details

AGLC: Ruhi v Friskie [2009] QDC 128
Case: [2009] QDC 128
Decision Date: 21 May 2009

CaseChat Overview and Summary

The case of Ruhi v Friskie involved Hare Ruhi, the applicant, who sought summary judgment against Julie-Ann Friskie, the respondent, for the recovery of a debt. The matter was heard and dismissed by a Magistrate, and the applicant subsequently appealed this decision to a higher court. The core issue before the court was whether the Magistrate's decision to dismiss the application for summary judgment was correct, and if not, whether the applicant's application for summary judgment should be granted.

The legal issues that the court had to address included the standard of review for the exercise of discretion by the Magistrate, the correctness of the Magistrate's decision in the absence of stated reasons, and the applicability of the uncontested facts to the criteria for summary judgment. The court noted that the Magistrate's decision did not include any reasons, which complicated the review process. Despite this, the court found that it could still assess the decision based on the principles of review of discretionary decisions and the evidence presented.

The court found that the Magistrate had exercised their discretion without providing reasons, which constituted an error in procedure. However, this did not necessarily mean the decision was incorrect; the court had to determine whether the Magistrate's outcome was justifiable based on the evidence. The court concluded that the Magistrate's decision was not supported by the uncontested facts, which left no real prospect of a successful defence. The undisputed evidence showed that the respondent owed the applicant a significant sum of money, thus satisfying the requirements for summary judgment. Consequently, the court granted the appeal and set aside the Magistrate's decision, ordering that the respondent pay the applicant the sum of $44,399.73.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal granted.

3. Decision of learned Magistrate to dismiss the application for summary judgment set aside.

4. Application for summary judgment granted.

5. Order that the Respondent, Julie-Ann Friskie, pay the Applicant, Hare Ruhi, the sum of $44, 399.73.

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:	Ruhi v Friskie [2009] QDC 128
PARTIES:	HARE LOUIS RUHI (Appellant/Plaintiff) v JULIE-ANNE SAMANTHA FRISKIE (Respondent/Defendant)
FILE NO/S:	D7/2008
DIVISION:	Civil Jurisdiction
PROCEEDING:	Appeal
ORIGINATING COURT:	Emerald Magistrates Court
DELIVERED ON:	21 May 2009
DELIVERED AT:	Emerald
HEARING DATE:	14 May 2009
JUDGES:	Dearden DCJ
ORDER:	1. Leave to appeal granted. 2. Appeal granted. 3. Decision of learned Magistrate to dismiss the application for summary judgment set aside. 4. Application for summary judgment granted. 5. Order that the Respondent, Julie-Ann Friskie, pay the Applicant, Hare Ruhi, the sum of $44, 399.73.
CATCHWORDS:	APPEAL AND HEARING DE NOVO – Appeal from interlocutory hearing - Discretion – Absence of reasons – Appealable error - Approach to review of exercise of discretion SUMMARY JUDGMENT – uncontested facts – no real prospect of successful defence
CASES:	Bawden v ACI Operations Pty Ltd [2003] QCA 293 Beale v Government Insurance Office of NSW [1997] 48 NSWLR 430 Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1995] QCA 187 Berry v Pinter [2006] QDC 18 Choi v Collansi & Anor [2002] QCA 441 Suncorp Insurance and Finance v Hill [1997] QCA 362 Westpac Banking Corporation v Klef Pty Ltd [1998] QCA 311 Deputy Commissioner of Taxation v Salcedo [2003] QCA 227
LEGISLATION:	Magistrates Court Act 1921 (Qld) ss 45, 47 District Court Act 1967 (Qld) s113 Uniform Civil Procedure Rules 1999 (Qld) r. 262, 292
COUNSEL:	Ms A Murray for the applicant The respondent appeared on her own behalf
SOLICITORS:	Anne Murray & Co, solicitors for the applicant The respondent appeared on her own behalf