Sunlouvre Pty Ltd v Huenerberg

DISTRICT COURT OF QUEENSLAND

CITATION:

Sunlouvre Pty Ltd v Huenerberg [2003] QDC 439

PARTIES:

SUNLOUVRE PTY LTD
Plaintiff/Appellant

v

JUERGEN HUENERBERG
Defendant/Respondent

FILE NO/S:

Appeal No. D 372/03

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

28 November 2003

DELIVERED AT:

Brisbane

HEARING DATE:

19 November 2003

JUDGE:

Judge Robin QC

ORDER:

Appeal Allowed

CATCHWORDS:

Appeal from Magistrates Court to District Court – Acting Magistrate entered judgment as sought by counterclaiming defendant on appellant/plaintiff’s claim and on the defendant’s counterclaim for failure of the plaintiff to comply with a Magistrate’s order to make disclosure by list – plaintiff was served with application but failed to appear as solicitor (on leave) did not learn of the application in time – UCPR r374(8) required such a judgment to be appealed against if to be set aside – history of non-compliance and non appearance by plaintiff – Acting Magistrate had no evidence to show the counterclaim had merit, and apparently did not consider whether the “ultimate remedy” under s 374(5)(a) was really appropriate – appeal allowed – whether appellant should pay indemnity costs considered

COUNSEL:

Mr SA McLean for the plaintiff/appellant
Mr PB O’Neill for the defendant/respondent

SOLICITORS:

Deacons for the plaintiff/appellant
Graham & Associates for the defendant/respondent

1. This is an appeal against orders of an Acting Magistrate made on 13 January 2003 that:

“1.The Claim and Statement of Claim be struck out and judgment be entered for the Defendant on the Claim and Counter-Claim on the grounds of that the plaintiff has failed to comply with the order of the Brisbane Magistrates Court on 22 November 2002 pursuant to Rule 371(2)(e) of the Uniform Civil Procedure Rules;

3.

Judgment be given for the Defendant Juergen Huenerberg  

 

against the Plaintiff Sunlouvre Pty. Ltd. in the sum of

 

$28,000.00 together with costs of $3,259-00, a total of

 

$31,259-00.”

The Acting Magistrate prepared the following typewritten account of the proceedings before him and his reasoning:

“ APPLICATION TO STRIKE OUT PROCEEDINGS AND ENTER JUDGMENT

FOR RESPONDENT PLAINTIFF:     No Appearance

FOR APPLICANT DEFENDANT:     Mr. N.R. Collins (Sol) Graham and Associates

I formally read the application and supporting affidavits of Nigel Robert Collins sworn on 20th December 2002 and Nigel Robert Collins sworn on 29th October 2002.

I hear oral submissions from Mr. Collins.

I allow the filing by leave of the following material:-

Affidavit of Rebecca MacMillan sworn on 8 January 2003;
Affidavit of Nigel Robert Collins sworn on 10 January 2003.

On the material before me, I am satisfied:-

1.     The Plaintiff has not complied with the order of the Brisbane Magistrates Court on 22 November 2002;

1. Service of this application.

I allow costs on the following basis:-

1.        Item 1 – Instructions to sue  $839-00;

2.        Item 2 – Instructions to defend  $839-00;

3.        Item 6(a) – Counsel’s fee to settle claim                $202-00;

4.        Item 6(e) – Counsel’s fee to advise  $210-00;
  (letter of 17/09/02)

5.        Item 10 – Application to Court  $412-00;

6.        Item 11(a)(i) – Allowance for requesting              $266-00;