Verhagen v Millard - [2013] QCA 122

SUPREME COURT OF QUEENSLAND

CITATION:

Verhagen & Anor v Millard [2013] QCA 122

PARTIES:

PETER EDWARD ANTHONY VERHAGEN
(first applicant)
WILLHELMINA VERHAGEN
(second applicant)
v
WAYNE STANLEY MILLARD
(respondent)

FILE NO/S:

Appeal No 8129 of 2012
DC No 3647 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

20 February 2013

JUDGES:

Margaret McMurdo P and Atkinson and Martin JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Leave to appeal is refused with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where the present applicants were granted judgment in a prior proceeding for a debt owed to them by the present respondents under a business sale contract – where the applicants contended that they were entitled to indemnity costs – where the presiding judge in the prior proceeding held that the applicants were entitled to costs on the standard basis only – where the applicants did not seek leave to appeal that costs order – where the applicants and respondent subsequently entered into a compromise agreement pursuant to which the respondent agreed to pay into trust the difference between the costs on the standard basis and indemnity costs and then to litigate as to the entitlement to that amount – where the respondent subsequently disputed the enforceability of the compromise agreement – where the applicants commenced fresh proceedings – where the primary judge held that the compromise agreement was, in part, void as contrary to the public interest in finality of litigation as it required the respondent to re-litigate an issue already determined in the prior proceedings – where the applicants seek leave to appeal the judgment of the primary judge – where the applicants contend that the appeal raises important issues of law about the similarities and differences between costs orders made by a court and antecedent contractual arrangements concerning the cost of legal work – whether leave to appeal should be granted

District Court of Queensland Act 1967 (Qld), s 118
Uniform Civil Procedure Rules 1999 (Qld), pt 5

Abigroup Limited v Sandtara Pty Limited [2002] NSWCA 45, distinguished
ACI Operations Pty Ltd v Bawden[2002] QCA 286, cited
Cooper & Anor v Jezer Construction Group Pty Ltd[2003] QCA 335, cited
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12, cited
Millard v Verhagen & Anor [2008] QDC 182, related
Millard v Verhagen & Anor, unreported, District Court of Queensland, Tutt DCJ, DC No 1398 of 2007, 3 October 2008, related
Vertzayias v King [2011] NSWCA 215, distinguished

COUNSEL:

P Hackett for the applicants
N H Ferrett for the respondent

SOLICITORS:

Colwell Wright Solicitors for the applicants
Forbes Dowling Lawyers for the respondent

MARGARET McMURDO P:

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 Verhagen v Millard

Details

AGLC: Verhagen & Anor v Millard [2013] QCA 122
Case: [2013] QCA 122
Decision Date: 21 May 2013

CaseChat Overview and Summary

Verhagen v Millard involved an appeal by the applicants, who were the successful parties in a prior proceeding, against a decision of the primary judge concerning the enforceability of a compromise agreement. The applicants had been granted judgment in the earlier proceeding for a debt owed to them by the respondents under a business sale contract. They contended that they were entitled to indemnity costs, but the presiding judge had awarded them costs on the standard basis only. The applicants and respondents then entered into a compromise agreement, which was subsequently disputed by the respondents. The applicants commenced fresh proceedings seeking enforcement of the compromise agreement, but the primary judge held that the agreement was, in part, void as contrary to the public interest in finality of litigation.

The legal issues before the court included the enforceability of the compromise agreement, the nature of costs orders in comparison to contractual arrangements concerning the costs of legal work, and whether the appeal raised important issues of law. The applicants argued that the appeal raised significant questions about the similarities and differences between costs orders made by a court and antecedent contractual arrangements concerning the cost of legal work. They contended that the primary judge had erred in his analysis of the enforceability of the compromise agreement.

The court found that the appeal did not raise significant questions of law that warranted leave to appeal. It held that the primary judge had correctly determined that the compromise agreement was, in part, void as contrary to the public interest in finality of litigation. The court also held that the appeal did not raise important issues of law about the similarities and differences between costs orders made by a court and antecedent contractual arrangements concerning the cost of legal work. The appeal was dismissed with costs awarded against the applicants.

Orders

Orders of the court

Leave to appeal is refused 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:	Verhagen & Anor v Millard [2013] QCA 122
PARTIES:	PETER EDWARD ANTHONY VERHAGEN (first applicant) WILLHELMINA VERHAGEN (second applicant) v WAYNE STANLEY MILLARD (respondent)
FILE NO/S:	Appeal No 8129 of 2012 DC No 3647 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	21 May 2013
DELIVERED AT:	Brisbane
HEARING DATE:	20 February 2013
JUDGES:	Margaret McMurdo P and Atkinson and Martin JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Leave to appeal is refused with costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where the present applicants were granted judgment in a prior proceeding for a debt owed to them by the present respondents under a business sale contract – where the applicants contended that they were entitled to indemnity costs – where the presiding judge in the prior proceeding held that the applicants were entitled to costs on the standard basis only – where the applicants did not seek leave to appeal that costs order – where the applicants and respondent subsequently entered into a compromise agreement pursuant to which the respondent agreed to pay into trust the difference between the costs on the standard basis and indemnity costs and then to litigate as to the entitlement to that amount – where the respondent subsequently disputed the enforceability of the compromise agreement – where the applicants commenced fresh proceedings – where the primary judge held that the compromise agreement was, in part, void as contrary to the public interest in finality of litigation as it required the respondent to re-litigate an issue already determined in the prior proceedings – where the applicants seek leave to appeal the judgment of the primary judge – where the applicants contend that the appeal raises important issues of law about the similarities and differences between costs orders made by a court and antecedent contractual arrangements concerning the cost of legal work – whether leave to appeal should be granted District Court of Queensland Act 1967 (Qld), s 118 Uniform Civil Procedure Rules 1999 (Qld), pt 5 Abigroup Limited v Sandtara Pty Limited [2002] NSWCA 45, distinguished ACI Operations Pty Ltd v Bawden[2002] QCA 286, cited Cooper & Anor v Jezer Construction Group Pty Ltd[2003] QCA 335, cited D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12, cited Millard v Verhagen & Anor [2008] QDC 182, related Millard v Verhagen & Anor, unreported, District Court of Queensland, Tutt DCJ, DC No 1398 of 2007, 3 October 2008, related Vertzayias v King [2011] NSWCA 215, distinguished
COUNSEL:	P Hackett for the applicants N H Ferrett for the respondent
SOLICITORS:	Colwell Wright Solicitors for the applicants Forbes Dowling Lawyers for the respondent