Speakman t/a Clive Speakman Solicitors v Evans - [2002] QCA 293

[2002] QCA 293

COURT OF APPEAL

McPHERSON JA
MACKENZIE J
HOLMES J

Appeal No 4018 of 2002

CLIVE WILLIAM SPEAKMAN TRADING AS Respondent/Respondent
CLIVE SPEAKMAN SOLICITORS

and

SIMON EVANS Applicant/Appellant

BRISBANE

..DATE 09/08/2002

JUDGMENT

McPHERSON JA: This is an application by the defendant for a stay of proceedings for enforcement of a judgment for the sum of $16,509 including interest given summarily in the Magistrates Court for the recovery of remuneration for professional services rendered by the plaintiff solicitor in acting for the defendant client. The defendant originally appealed against that judgment to the District Court where his appeal was dismissed. He now seeks leave under s 118 of the District Court Act to appeal to this Court and also to obtain a stay of enforcement of the judgment given in the Magistrates Court. His right to apply for the stay here is dependent on his having an appeal to this Court, or at the very least a grant of the right to appeal by leave to this Court. See Stone v. Copperform Pty Ltd [2002] 1 Qd.R 106.

The reasons for judgment of the District Court Judge dismissing the appeal from the Magistrate's judgment identify the issues in the case before his Honour. At the hearing in that Court his Honour permitted the defendant to file and read three affidavits in answer to the original application for summary judgment. Permitting this to be done effectively met any complaint that the defendant might have had that in the Magistrates Court he had been denied the right to give evidence orally in answer to the plaintiff's claim and affidavit in support of the application for summary judgment.
Having considered the affidavit material presented in the District Court his Honour declared himself satisfied that there was no real issue to be tried in the action and that there was no likelihood of a defence succeeding. In particular, his Honour said at page 6 of his reasons:

"It is clear that the respondent wrote on numerous occasions to the applicant seeking his signature to the written retainer but there is no documentary evidence that any of those letters were responded to with an assertion that there was no need to sign the written agreement because there was already an oral agreement and the matter was to be handled on a speculative basis.
It seems to me that the contemporaneous documentary evidence in this case is so strong as to make it entirely unlikely that at a hearing, if there were to be one, that it would be accepted that there was an oral contract of the type claimed by the appellant. In my view the defence outlined is so unlikely to succeed as to require me to dismiss the appeal."

His Honour considered that, even though there was no written agreement or retainer, there was a compelling inference from the actions of the parties that there was an implied agreement that the defendant was to pay the plaintiff's reasonable fees. From the correspondence…

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: [2002] QCA 293
Decision Date: 09/08/2002

CaseChat Overview and Summary

In the case of Speakman t/a Clive Speakman Solicitors v Evans, the Court of Appeal was asked to consider an application for a stay of enforcement of a judgment for the sum of $16,509 including interest, given summarily in the Magistrates Court. This judgment was for remuneration owed by the defendant, Simon Evans, for professional services rendered by the plaintiff, Clive William Speakman, trading as Clive Speakman Solicitors. Evans had previously appealed against the Magistrates Court judgment in the District Court, which was dismissed. He now sought leave to appeal to the Court of Appeal under s 118 of the District Court Act, as well as a stay of enforcement of the original judgment. The appeal to the Court of Appeal hinged on the defendant's ability to demonstrate that he had grounds for an appeal or had obtained leave to appeal, as his right to apply for a stay was contingent on this.

The legal issues before the Court of Appeal were primarily whether there were any real issues to be tried that might succeed in the defendant's favour and whether the defendant had sufficiently demonstrated grounds for an appeal or leave to appeal. The District Court Judge had considered the affidavit material and found that there was no real issue to be tried, as the evidence suggested a compelling inference of an implied agreement for the defendant to pay the plaintiff's reasonable fees. The defendant's conduct, including refusal to sign the retainer agreements, amounted to a repudiation of the agreement, allowing the plaintiff to sue for fees for the work done. The Court of Appeal needed to determine whether there were any grounds to grant leave to appeal or to stay the enforcement of the judgment.

The Court of Appeal, after considering the reasons for judgment of the District Court Judge and the evidence presented, found that there was no basis for granting leave to appeal. The case had already been through two Courts, and the evidence was strong against the defendant's claimed defence of an oral agreement. The Court of Appeal concluded that the application for leave to appeal, the purported appeal, and the application for a stay of enforcement of the judgment in the Magistrates Court should all be dismissed. The defendant was also ordered to pay the plaintiff's costs of and incidental to those applications and the appeal.

Orders