Yerkovich v James - [2024] QCA 159

SUPREME COURT OF QUEENSLAND

CITATION:

Yerkovich v James [2024] QCA 159

PARTIES:

EILEEN ALICE YERKOVICH by her litigation guardian MELISSA MARIA JOY
(appellant)
v
GINA KAARA JAMES
(respondent)

FILE NO/S:

Appeal No 2535 of 2024
SC No 5670 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2024] QSC 14 (Brown J)

DELIVERED ON:

30 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

23 July 2024

JUDGES:

Bond and Dalton JJA and Hindman J

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS –AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – where the respondent obtained default judgment against the appellant –where the appellant applied to set aside a default judgment – where the appellant argued that service was ineffective since the appellant was a person of impaired capacity – where the primary judge dismissed that application – where the appellant appealed on several grounds – whether the primary judge miscarried in finding that the appellant was not an impaired person

Supreme Court of Queensland Act 1991 (Qld), sch 5
Uniform Civil Procedure Rules 1999 (Qld), r 290

Aziz v Prestige Property Services Pty Ltd [2007] QSC 265, considered
Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17, considered
Palmer v The Chief Executive, Queensland Corrective Services Commission [2009] QCA 296, cited

COUNSEL:

M T de Waard for the appellant
P A Travis for the respondent

SOLICITORS:

Kelly Legal for the appellant
Axia Litigation Lawyers for the respondent

BOND JA: I agree with the reasons for judgment of Hindman J and the order proposed by her Honour.
DALTON JA: I agree with the order proposed by Hindman J and with her reasons.
HINDMAN J:
Issue in the appeal
The appeal concerns whether the appellant was an impaired person within the meaning of r 109 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) on 15 May 2021 when the appellant was personally served with a proceeding filed by the respondent against the appellant in the Supreme Court of Queensland (in respect of which default judgment was eventually entered in favour of the respondent).
Rule 109 of the UCPR provides:
“A document required to be served personally on a person with impaired capacity (the "impaired person") must be served instead on-
(a)the person who is the impaired person’s litigation guardian for the proceeding to which the document relates; or
(b)if there is no-one under paragraph (a) - a person who is entitled under rule 94(2) to be the impaired person’s litigation guardian for the proceeding to which the document relates; or
(c)if there is no-one under paragraph (a) or (b) - an adult who has the care of the impaired person.”
The starting position is that at common law adults are assumed presumed to have capacity.[1] That proposition is not in doubt.
[1]Palmer v The Chief…

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 Yerkovich v James

Details

AGLC: Yerkovich v James [2024] QCA 159
Case: [2024] QCA 159
Decision Date: 30 August 2024

CaseChat Overview and Summary

The case of Yerkovich v James involved an appeal by the appellant against a decision of the primary judge who dismissed an application to set aside a default judgment obtained by the respondent. The appellant argued that the service of the proceeding was ineffective because they were a person of impaired capacity. The court had to determine whether the primary judge was correct in finding that the appellant was not an impaired person.

The legal issues that the court had to decide included whether the primary judge correctly applied the relevant law in determining that the appellant was not an impaired person and whether the appellant's incapacity was such that it rendered the service of the proceeding ineffective. The court also had to consider whether the appellant's age and residence in New Zealand affected the validity of the service.

The court found that the primary judge correctly applied the law and there was no evidence to support the appellant's claim of impaired capacity. The court held that the appellant's age and residence in New Zealand did not affect the validity of the service, as the appellant had appointed solicitors in Queensland to act on their behalf. The court dismissed the appeal with costs.

The court's reasoning and outcome were based on the evidence presented to the primary judge and the applicable law. The court found that the appellant had not provided sufficient evidence to support their claim of impaired capacity and that the service of the proceeding was valid. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

The underlying policy behind r 109 of the UCPR is plain. It would be unfair to allow service of a proceeding on a person not capable of making the decisions required of a litigant for conducting the proceeding. In the context of being served with a proceeding that would require timely decisions to be made by the served person such as:(a)if legal representatives are to be engaged;(b)if the proceeding is to be defended;(c)the content of any defence to be pleaded.Background The respondent, who resides in Australia, is the appellant’s adult daughter. The appellant resides in New Zealand and is an elderly person. In 1998 the appellant and respondent became the joint owners of residential property situated at Maleny. The respondent thereafter lived at the property (at least from time to time). The precise arrangements about the purchase of the property and the living arrangements are contentious between the parties. In 2011 the joint tenancy was severed and the respondent transferred her interest in the property to the appellant. The respondent continued to live at the property (at least from time to time). Again, the precise circumstances and arrangements about the transfer of the property and the ongoing living arrangements are contentious between the parties. In 2015 the respondent was requested by the appellant to vacate the property. The respondent did not vacate. On 18 March 2020 the respondent lodged a caveat over the property on the basis of an implied, resulting or constructive trust, and claimed a half interest in the property. There appears to have been a letter issued by the respondent’s solicitors to the appellant on 23 March 2020.[2] It can be inferred that letter gave notice of the lodged caveat to the appellant.[2]Referred to in ARB 297. The appellant instructed solicitors practising in Queensland and disputed the respondent’s grounds of claim to an interest in the property. The appellant’s solicitors commenced corresponding with the respondent’s solicitors from 13 May 2020 when notice was given to commence proceedings to support the caveat.[3] A second such notice was given on 19 May 2020.[4] If such proceedings were not commenced within a specified time, the caveat would lapse.[3]ARB 288.[4]ARB 290. On the same day (19 May 2020), the appellant’s solicitors served a notice on the respondent requiring her to vacate the property.[5] Reference was made to an earlier eviction notice in 2015.[5]ARB 292-293. On 20 May 2020 the respondent’s solicitors wrote to the appellant’s solicitors stating, inter alia:“We acknowledge that your client disputes the grounds of the claim however note that this appears to be based on instructions “on behalf” of your client. We are instructed that since last year, at the latest, your client appeared to be suffering a significant diminution in mental capacity and the fact that you appear to have no direct instructions from your client tends to support that diminution of capacity. We consequently query the basis of your assertion that the Caveat lodged by our client was improper and await your response.”

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:	Yerkovich v James [2024] QCA 159
PARTIES:	EILEEN ALICE YERKOVICH by her litigation guardian MELISSA MARIA JOY (appellant) v GINA KAARA JAMES (respondent)
FILE NO/S:	Appeal No 2535 of 2024 SC No 5670 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – [2024] QSC 14 (Brown J)
DELIVERED ON:	30 August 2024
DELIVERED AT:	Brisbane
HEARING DATE:	23 July 2024
JUDGES:	Bond and Dalton JJA and Hindman J
ORDER:	Appeal dismissed with costs.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS –AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – where the respondent obtained default judgment against the appellant –where the appellant applied to set aside a default judgment – where the appellant argued that service was ineffective since the appellant was a person of impaired capacity – where the primary judge dismissed that application – where the appellant appealed on several grounds – whether the primary judge miscarried in finding that the appellant was not an impaired person Supreme Court of Queensland Act 1991 (Qld), sch 5 Uniform Civil Procedure Rules 1999 (Qld), r 290 Aziz v Prestige Property Services Pty Ltd [2007] QSC 265, considered Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17, considered Palmer v The Chief Executive, Queensland Corrective Services Commission [2009] QCA 296, cited
COUNSEL:	M T de Waard for the appellant P A Travis for the respondent
SOLICITORS:	Kelly Legal for the appellant Axia Litigation Lawyers for the respondent