Wellner v Chidgey

[2012] QCAT 418

CITATION: Wellner v Chidgey [2012] QCAT 418

PARTIES:	Utz Wellner t/as Wellners Lawyers
v
David Chidgey

APPLICATION NUMBER: MCDO578-05 (Wynnum) / MCDO1432-12 (Brisbane)

MATTER TYPE: Other minor civil disputes matters

HEARING DATE: 25 July 2012

HEARD AT: Brisbane

DECISION OF: Paul Favell, Member

DELIVERED ON: 2 August 2012

DELIVERED AT: Brisbane

ORDERS MADE: The respondent pay to the applicant $13,892.56 by 4pm 28 September 2012.

CATCHWORDS: Minor civil dispute – debt owing – costs - quantum

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Utz Wellner

RESPONDENT: No appearance

REASONS FOR DECISION

1. This application commenced in the Magistrates Court in July 2006.  The Applicant, Wellners Lawyers, had brought an action against the Respondent, David Stanley Chidgey, claiming legal fees and outlays by a Statement of Claim filed in the Magistrates Court on 22 December 2005.  The defendant to that Statement of Claim filed a Notice of Intention to Defend, Defence and Counter-Claim in that Court on 16 March 2006.

2. On 28 July 2006 a Magistrate gave judgment on the plaintiff’s claim for $16,302.87 which included the amount of the claim plus $2,410.32 for costs.  The defence and counter-claim were both struck out and the application filed by the defendant was also struck out.

3. The defendant appealed against those orders and on 16 August 2007 the appeal was allowed and the judgment given on 28 July 2006 was set aside.  The District Court ordered in lieu that the defence and counterclaim file be struck out but with liberty to re-plead.

4. On 21 January 2008, a judgment was given for the plaintiff Utz Wellner t/as Wellners Lawyers in the sum of $19,646.86 which included interest of $4,446 to 21 January 2008 and $1,308.30 costs.  That judgment was given when the defendant had not filed a notice of intention to defend.

5. The defendant appealed against that decision and on 19 November 2009 the appeal was dismissed by the District Court.

6. The defendant appealed against that decision and on 16 August 2010, leave to appeal was granted and the appeal was allowed.  The Court of Appeal ordered that the order of the District Court made on 19 November 2009 be set aside and that in lieu thereof it was ordered that the orders made in the proceeding in the Magistrates Court on 21 January 2008 and 29 May 2009 be set aside.

7. The matter was then set down for hearing before the Magistrates Court at Wynnum on 29 March 2012. On that date, the Magistrates Court transferred the claim on its own initiative under s 53 of the QCAT Act to be heard and determined by QCAT.

8. The application was then set down for hearing at 2pm on 25 July 2012. The matter was called on for hearing soon after that time and the Respondent, Mr David Chidgey, did not attend. His name was called three times. Upon being satisfied that the Respondent had been served with a notice of the hearing by the notice having been posted by ordinary mail to his address at 107 Thomas St Burkdale, which address corresponds with the addresses provided in the amended defence and counterclaim on 31 January 2012 as the address of the Respondent the Tribunal determined to hear the application in the absence of the Respondent pursuant to section 93 of the Queensland Civil and Administrative Tribunal Act 2009.

9. An amended statement of claim was filed in the Wynnum registry of the Magistrates Court on 22 December 2005.  An amended defence and counterclaim was filed on 31 January 2012 and a reply to that amended defence and counterclaim was filed on 31 January 2012.

10. The claim made by the Applicant is for $8,879.26 for professional costs and $5,000 for outlays incurred on behalf of the Respondent. The Applicant also seeks interest pursuant to the provisions of s 47 of the Supreme Court Act 1995 and costs.  The costs sought by the Applicant total $1,088.30 being made up of a filing fee of $166.30, professional costs on the claim of $890, and service fee on the claim of $232.

11. The amended defence and counterclaim filed does not respond to the claims made from the statement of claim filed but rather it alleges the Applicant failed a duty of care as a solicitor in some respects in the Federal Magistrate’s Court.  It does not seek to expand such allegations.  It also cites in part the history of this claim.  The amended defence and counterclaim assert that the Court of Appeal did not remit the claim back to the Magistrates Court and claims that the Applicant is simply abusing court process.

12. The Respondent says that as the matter has been heard in this court several times and because higher courts have failed to uphold the Magistrate’s decision, the Respondent objects to the application being heard and requests that the application for judgment be dismissed. The Respondent then goes on to make reference to Rule 292 of the UCPR and make statements about procedural fairness and aspects of natural justice. None of the claims seem to me to be responsive to these matters relating to the statement of claim.

13. Mr Wellner provided a number of affidavits to support his claim.  Those affidavits were sworn on 11 May 2009, 18 May 2009 and 6 July 2006.  The affidavit of 6 July 2006 sets out the history behind the claim and exhibits bills in taxable form.  Mr Wellner has sworn to the reasonableness of the bills on which he relies and to the expenditure of the outlays.  The amended bill of costs, exhibit UW-4 establishes the quantum of the claims made.  The Applicant has made out his claim and there is no credible defence proved.

14. I order that the Respondent pay the plaintiff $13,892.56 for legal services, costs and outlays rendered by 4pm 28 September 2012.