Stubberfield v Lippiatt and Co - [2002] QCA 447

SUPREME COURT OF QUEENSLAND

CITATION:

Stubberfield v. Lippiatt & Co. [2002] QCA 447

PARTIES:

JOHN RICHARD STUBBERFIELD

(defendant/applicant)
v
LIPPIATT & CO (A FIRM)
(plaintiff/respondent)

FILE NO/S:

Appeal No 6653 of 2002
DC No 2263 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

25 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

14 October 2002

JUDGES:

McMurdo P, McPherson JA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave dismissed with costs

CATCHWORDS:

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – where court found retainer between respondent and applicant wrongfully terminated by the applicant – where refusal by learned District Court Judge to grant extension of time for applicant to appeal decision of the Magistrates Court – where long delay between judgment and making of sequestration order and annulment of bankruptcy before notice filed in District Court – whether learned judge proceeded on erroneous principle or miscarried use of discretion – where applicant seeks relief under Uniform Civil Procedure Rules r 667 (2)(b) – where applicant alleges order of court obtained by fraud – where alleged fraudulent conduct of respondent by way of two affidavits containing alleged differences in content

Uniform Civil Procedure Rules 1999 (Qld), r 667(2)(b)

COUNSEL:

The applicant appeared on his own behalf
A H Musgrave for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Lippiatt & Co for the respondent

McMURDO P: I agree with the reasons for judgment of Cullinane J and with his proposed orders.

McPHERSON JA: I agree with the reasons of Cullinane J for dismissing the applications for leave to appeal and doing so with costs.

CULLINANE J: In this matter the applicants seeks leave to appeal against an order of the District Court refusing an extension of time in which to seek leave to appeal to that court against a judgment of the Magistrates Court given in favour of the respondent on 9 October 1998.

The total amount of the judgment is $21,699.37 including costs and interest.

The respondent firm of solicitors had instituted proceedings against the applicant for professional fees incurred in resisting a bankruptcy petition. The person who, on behalf of the respondent, had the relevant dealings with the applicant was one Lippiatt and I will for convenience refer to him as the respondent.

Although the judgment was given on 9 October 1998 the applicant did not apply for leave to appeal in the District Court until June 2002.

In July 1997 a sequestration order had been made against the applicant’s estate. The bankruptcy was annulled in November 2001 after the applicant’s debts had been paid in full.

The primary issue between the parties before the Magistrates Court concerned the circumstances in which the respondent’s retainer had been terminated.

The learned Magistrate found for the respondent on this issue concluding that the retainer had been wrongfully terminated by the applicant. This decision…

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 447
Decision Date: 25 October 2002

CaseChat Overview and Summary

In the case of Stubberfield v Lippiatt and Co, the applicant sought relief in relation to a wrongful termination of a retainer by the applicant, which was found to have occurred. The District Court Judge had previously denied the applicant's request to extend the time for appealing a Magistrates Court decision. The applicant argued that the decision was obtained by fraud, citing alleged differences in content in two affidavits provided by the respondent. The applicant sought relief under Uniform Civil Procedure Rules rule 667(2)(b), which provides for relief from a judgment or order on the grounds of fraud. The court was tasked with determining whether the District Court Judge had proceeded on an erroneous principle or miscarried in the use of their discretion when denying the extension of time for the appeal.

The legal issues that the court needed to address included whether the District Court Judge had applied an incorrect principle or exercised their discretion improperly in refusing the extension of time. Additionally, the court had to consider whether the applicant's claim of fraud was valid and if it justified relief under rule 667(2)(b). The court also needed to examine the significant delay between the Magistrates Court judgment, the sequestration order, the annulment of bankruptcy, and the notice filed in the District Court. The applicant argued that these delays warranted relief, as they had been caused by the respondent's alleged fraudulent conduct.

The court found that the District Court Judge had not proceeded on an erroneous principle or miscarried in the exercise of their discretion. The court held that the applicant had not demonstrated that the order obtained by the respondent was fraudulent or that the alleged differences in the affidavits were significant enough to warrant relief. The court further found that the applicant had not provided a sufficient basis for the relief sought under rule 667(2)(b). The court also determined that the delays in the proceedings were not attributable to any fraudulent conduct on the part of the respondent. As a result, the court dismissed the application for leave and ordered the applicant to pay costs.

The court's final orders were that the application for leave was dismissed with costs. The court held that the District Court Judge had not erred in their decision to deny the extension of time for the appeal and that the applicant had not demonstrated any grounds for relief under rule 667(2)(b). The applicant was ordered to pay the costs of the proceedings. The court found no merit in the applicant's claims of fraud and delays caused by the respondent.

Orders

Orders of the court

Application for leave dismissed 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:	Stubberfield v. Lippiatt & Co. [2002] QCA 447
PARTIES:	JOHN RICHARD STUBBERFIELD (defendant/applicant) v LIPPIATT & CO (A FIRM) (plaintiff/respondent)
FILE NO/S:	Appeal No 6653 of 2002 DC No 2263 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	25 October 2002
DELIVERED AT:	Brisbane
HEARING DATE:	14 October 2002
JUDGES:	McMurdo P, McPherson JA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave dismissed with costs
CATCHWORDS:	PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – where court found retainer between respondent and applicant wrongfully terminated by the applicant – where refusal by learned District Court Judge to grant extension of time for applicant to appeal decision of the Magistrates Court – where long delay between judgment and making of sequestration order and annulment of bankruptcy before notice filed in District Court – whether learned judge proceeded on erroneous principle or miscarried use of discretion – where applicant seeks relief under Uniform Civil Procedure Rules r 667 (2)(b) – where applicant alleges order of court obtained by fraud – where alleged fraudulent conduct of respondent by way of two affidavits containing alleged differences in content Uniform Civil Procedure Rules 1999 (Qld), r 667(2)(b)
COUNSEL:	The applicant appeared on his own behalf A H Musgrave for the respondent
SOLICITORS:	The applicant appeared on his own behalf Lippiatt & Co for the respondent