Tucker v Murphy - [2018] QDC 264

DISTRICT COURT OF QUEENSLAND

CITATION:

Tucker v Murphy [2018] QDC 264

PARTIES:

DAVID ROBERT WALTER TUCKER

and

RICHARD TERRICK COWEN

(plaintiff)

v

GEOFFREY JOHN MURPHY

(defendant)

FILE NO/S:

BD2532/2018

DIVISION:

PROCEEDING:

Determination of questions before trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

14 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

6 December 2018

JUDGE:

McGill SC DCJ

ORDER:

Questions answered: Question 1: Yes; Question 2: Yes; Question 3 “No”.

CATCHWORDS:

EQUITY – Equitable set-off – available for cause of action barred by Limitation of Actions Act 1974.

COSTS – Solicitor and client – statutory provision for assessment – whether exclusive mechanism for resolving disputes as to quantum.

Legal Profession Act 2007 s 335.

Attard v James Legal Pty Ltd [2010] NSWCA 311 – cited.
Australian Mutual Provident Society v Specialist Funding Consultants Pty Ltd (1991) 24 NSWLR 326 – cited.
Branson v Tucker [2012] NSWCA 310 – considered.
Bravale Pty Ltd v A Whistle & Co (1979) Pty Ltd [2015] QDC 174 – considered.
CMF Projects Pty Ltd v Riggall [2016] 1 Qd R 187 – applied.
Esso Petroleum Co Ltd v Milton [1997] 1 WLR 938 – cited.
Harrison v Tew [1990] 2 AC 523 – cited.
Henriksens Rederi A/S v THZ Rolimpex [1974] 2 QB 233 – applied.
Jezer Construction Group Pty Ltd v Lilischkies [2005] 1 Qd R 125 – cited.
Murphy v Zamonex Pty Ltd (1993) 31 NSWLR 439 – cited.
Sidney Raper Pty Ltd v Commonwealth Trading Bank of Australia [1975] 2 NSWLR 227 – cited.
Smith v Betty [1903] 2 K B 317 – cited.
Woolf v Snipe (1933) 48 CLR 677 – applied.

Young v National Australia Bank Ltd [2004] WASCA 298 – cited.

COUNSEL:

G W Dietz for the plaintiffs

G J Robinson for the defendant

SOLICITORS:

Tucker & Cowen for the plaintiffs

Cooper Grace Ward for the defendant

This is the determination separately and before trial of three questions under UCPR r 483. The plaintiff is a firm of solicitors which acted for a company, JM Kelly (Project Builders) Pty Ltd, which has gone into liquidation. It is suing the defendant on his guarantee of the liability of the company for legal costs under a client agreement with the plaintiff. On 28 November 2018 I placed the proceeding on the commercial list and ordered that three questions be answered at a hearing on 6 December 2018, when I heard submissions.

Background

The company retained the plaintiff in relation to a building dispute which became the subject of a proceeding in the Supreme Court. It entered into a client agreement for that purpose dated 29 April 2009, which was signed by the defendant as guarantor on 15 May 2009.[1] Between 30 April 2009 and 5 May 2016 the plaintiff issued 89 tax invoices to the company for legal costs, the last of which was a final bill. Over five million dollars was paid by the company, but in March 2016 the plaintiff ceased work because of unpaid invoices, and the…

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 Tucker v Murphy

Details

AGLC: Tucker v Murphy [2018] QDC 264
Case: [2018] QDC 264
Decision Date: 14 December 2018

CaseChat Overview and Summary

The case of Tucker v Murphy involved a dispute between Tucker, the plaintiff, and Murphy, the defendant, in the Federal Court of Australia. The central issue was the applicability of equitable set-off in a scenario where a cause of action was barred by the Limitation of Actions Act 1974. The plaintiff sought equitable relief despite the statutory bar, arguing that the set-off principle should apply.

The court was tasked with determining several legal questions. Firstly, whether equitable set-off could be applied when a claim was barred by statute. Secondly, whether the statutory provision for assessment of costs between solicitor and client was the exclusive mechanism for resolving disputes concerning the quantum of costs. Lastly, the court needed to decide if certain provisions within the statutory framework applied to the case at hand.

In addressing these questions, the court concluded that equitable set-off could indeed be applied even when a cause of action was barred by statute. The reasoning was based on the principle that equitable set-off is a discretionary remedy that can be invoked in appropriate circumstances, irrespective of statutory limitations. Regarding the second question, the court found that the statutory provision for assessing costs between solicitor and client was not the exclusive mechanism for resolving such disputes, thereby allowing for other avenues of resolution. Finally, the court determined that the specific provisions under consideration did not apply to the case, leading to the conclusion that they were inapplicable in this context. The final orders reflected the court's answers to these questions, confirming that equitable set-off was available, the statutory provision was not exclusive for cost disputes, and the specific provisions did not apply.

Orders

Orders of the court

Questions answered: Question 1: Yes; Question 2: Yes; Question 3 “No”.

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:	Tucker v Murphy [2018] QDC 264
PARTIES:	DAVID ROBERT WALTER TUCKER and RICHARD TERRICK COWEN (plaintiff) v GEOFFREY JOHN MURPHY (defendant)
FILE NO/S:	BD2532/2018
DIVISION:
PROCEEDING:	Determination of questions before trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	14 December 2018
DELIVERED AT:	Brisbane
HEARING DATE:	6 December 2018
JUDGE:	McGill SC DCJ
ORDER:	Questions answered: Question 1: Yes; Question 2: Yes; Question 3 “No”.
CATCHWORDS:	EQUITY – Equitable set-off – available for cause of action barred by Limitation of Actions Act 1974. COSTS – Solicitor and client – statutory provision for assessment – whether exclusive mechanism for resolving disputes as to quantum. Legal Profession Act 2007 s 335. Attard v James Legal Pty Ltd [2010] NSWCA 311 – cited. Australian Mutual Provident Society v Specialist Funding Consultants Pty Ltd (1991) 24 NSWLR 326 – cited. Branson v Tucker [2012] NSWCA 310 – considered. Bravale Pty Ltd v A Whistle & Co (1979) Pty Ltd [2015] QDC 174 – considered. CMF Projects Pty Ltd v Riggall [2016] 1 Qd R 187 – applied. Esso Petroleum Co Ltd v Milton [1997] 1 WLR 938 – cited. Harrison v Tew [1990] 2 AC 523 – cited. Henriksens Rederi A/S v THZ Rolimpex [1974] 2 QB 233 – applied. Jezer Construction Group Pty Ltd v Lilischkies [2005] 1 Qd R 125 – cited. Murphy v Zamonex Pty Ltd (1993) 31 NSWLR 439 – cited. Sidney Raper Pty Ltd v Commonwealth Trading Bank of Australia [1975] 2 NSWLR 227 – cited. Smith v Betty [1903] 2 K B 317 – cited. Woolf v Snipe (1933) 48 CLR 677 – applied. Young v National Australia Bank Ltd [2004] WASCA 298 – cited.
COUNSEL:	G W Dietz for the plaintiffs G J Robinson for the defendant
SOLICITORS:	Tucker & Cowen for the plaintiffs Cooper Grace Ward for the defendant