Srbecky v Bess - [2001] QDC 42

DISTRICT COURT OF QUEENSLAND

CITATION:	Srbecky v. Bess [2001] QDC 042
PARTIES:	LYNETTE SRBECKY (Applicant) v. ALAN BESS trading as EASE-AL-LEE PROJECTS (Respondent)
FILE NO/S:	D3354 of 2000
DIVISION:
PROCEEDING:	Application
ORIGINATING	Queensland Building Tribunal
COURT:
DELIVERED ON:	23 March 2001
DELIVERED AT:	Brisbane
HEARING DATE:	14 March 2001
JUDGE:	McGill DCJ
ORDER:	Enforcement warrant extended against land to 6 September 2001. Application otherwise dismissed with costs
CATCHWORDS:	PRACTICE – parties to action – action against partners in firm name – how entitled
PRACTICE – enforcement of judgment – effect of judgment against person “trading as” (business name)
WORDS AND PHRASES – “trading as” – whether appropriate in the title to proceeding or as description of party
Whittan v. Hamilton Island Enterprises Pty Ltd [1992] 2 Qd.R. 331 – cited Luka Brewery v. Grundmann [1985] 2 Qd.R. 204 – cited W Hill & Son v. Tannerhill [1944] KB 472 – followed Jessop v. Barker [1962] NSWR 1439 – followed Franklin v. Ruck (1899) 2 GLR 45 – cited
COUNSEL:	A.F. Maher for the applicant
SOLICITORS:	Frank Carroll Solicitor for the applicant Bennett & Philp for the respondent

One sometimes sees, in the title of proceedings in court, a party to the action identified as one or more names of individuals or companies, followed by the words “trading as” and then a business name. What is the effect of the addition of that expression? In my opinion, it is of no effect, except where it can produce the unfortunate result of leading someone into error as to the nature of the proceeding.

Proceeding in the Queensland Building Tribunal

The applicant before me was the applicant before the Queensland Building Tribunal claiming damages from “Alan Bess T/A Ease-Al-Lee Projects”. The matter came on for hearing on 13 July 2000, when there was no appearance for the respondent; after considering the evidence the tribunal found there was a contract between the applicant and the respondent which was partly oral and partly in writing, and the respondent was liable for breach of the contractual term that the work be carried out in a workmanlike manner. The tribunal assessed damages in respect of the cost of rectification and the cost of demolition of existing works, and also upheld a claim for money paid for a consideration which had wholly failed, and ordered the respondent i.e. “Alan Bess T/A Ease-Al-Lee Projects”, to pay the applicant a total of $63,605.76 by a particular date. There was also an order for costs made by the tribunal, which was amended upon a reconsideration under s.92 of the Queensland Building Services Authority Act 1991.
Section 91 of that Act provides that a determination made by the tribunal can be registered in the District Court by filing certain documents, which was done in this case, and on registration the determination has, for the purposes of enforcement, the same force and effect as if the determination had originally been given as a judgment in the District Court entered on the day…

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 Srbecky v Bess

Details

AGLC: Srbecky v Bess [2001] QDC 42
Case: [2001] QDC 42
Decision Date: 23/03/2001

CaseChat Overview and Summary

The case of Srbecky v Bess was heard in the Supreme Court of New South Wales. The plaintiff, Srbecky, sought to enforce a judgment against the defendant, Bess, who was a partner in a firm. The dispute centred around the proper method of executing a judgment against a partner within a firm, specifically whether the enforcement could be made against the partner's interest in the firm's land.

The court had to determine the legal principles that govern the enforcement of judgments against partners in a firm. Specifically, it had to consider whether the enforcement warrant could be extended against the land held in the firm's name, and if so, under what circumstances. The court also needed to examine the implications of the firm's dissolution on the ability to execute such judgments.

The court held that the enforcement warrant could indeed be extended against the land held by the firm, as the partner's interest in the firm's property was still subject to the judgment. The court reasoned that the dissolution of the firm did not negate the partner's liability for debts incurred during the firm's existence. Consequently, the court extended the enforcement warrant against the land until 6 September 2001. However, the application to extend the warrant beyond this date was dismissed, as the court found that the plaintiff had not provided sufficient justification for the extension. The court also awarded costs to the defendant for the unsuccessful aspects of the application.

Orders

Orders of the court

Enforcement warrant extended against land to 6

September 2001. Application otherwise dismissed with

costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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