Court of Appeal Judgment Summary Notes

Crouch and Lyndon (a Firm) v IPG Finance Australia Pty Ltd & Anor [2013] QCA 220 Holmes and Fraser JJA and Dalton J 9/08/2013

General Civil Appeal — where the respondents entered into a number of mortgage lending transactions with a former partner, Wood, of the appellant law firm — where that partner made a representation in order to induce the respondents to advance the loan monies — where the partner then misappropriated the loan monies and took money from other clients of the appellant in order to meet interest repayments on the loans — whether the trial judge erred in identifying the wrongful acts — whether the wrongful acts were committed in the ordinary course of business of the appellant or with its apparent authority pursuant to s 13(1) of the Partnership Act 1891 (Qld) — whether the appellant received the respondents’ money in the course of its business in accordance with s 14(1)(b) of the Partnership Act 1891 (Qld) — whether since the representation was apparently designed to encourage the respondents to retain Crouch & Lyndon to act for them in the proposed mortgage loans, the same circumstances support the conclusion that Wood acted within his apparent authority in making the representation; in the absence of any notice to the client of a relevant restriction upon a partner’s actual authority, it must be within a partner’s apparent authority to encourage the client to retain the partner’s firm to do work which it is within the partner’s apparent authority to do — where a significant feature of the representation in favour of a finding of apparent authority is that Crouch & Lyndon was to earn fees for carrying out work described in the representation — where the fees were to be paid out of the loan money which the respondents paid into Crouch & Lyndon’s trust account and they were to be paid for work of a kind which was then done by solicitors and which apparently fell within that part of Crouch & Lyndon’s business which Scott, a partner of the law firm, left Wood to manage — where the respondents suffered their losses as a result of the misleading and deceptive representation made by Wood with Crouch & Lyndon’s apparent authority. Appeal dismissed with costs.

Modi & Clements v SDW Projects Pty Ltd & Ors [2013] QCA 221 Holmes and Gotterson JJA and Boddice J 9/08/2013

General Civil Appeals — where the appellants, Mr Modi and Ms Clements, were solicitors retained by the first respondent to assist in conveying units in a proposed development — where buyers under the contracts of sale withdrew their offers to purchase, arguing that they were not bound because of non-compliance with s 365(2A)(c)(ii) of the Property Agents and Motor Dealers Act 2000 (Qld) — where the first respondent obtained a declaration that letters sent by the appellants to the buyers’ solicitors, returning executed contracts with warning statements and information sheets, did not direct the buyers’ attention to the warning and information sheet, as required by s 365(2A)(c)(ii) — whether reference in the letters to the “Contract of Sale” could be regarded as encompassing the warning statement and information sheet — whether the context in which the letters were received or the form of the documents obviated the need to make specific reference to the relevant documents — whether the letters met the requirements of s 365(2A)(c)(ii) — where the Act requires not merely that the buyer be aware of the relevant documents, but that the seller act to make him aware, by directing attention to them — whether the seller has directed the buyer’s attention to the documents cannot be determined by the likelihood of the latter’s solicitor examining the material himself — where no convincing reason has been advanced as to why “Contract of Sale” in the letters should be regarded as embracing the warning sheet and the information sheet. Appeal dismissed with costs.

State of Queensland v Bank of Queensland & Anor [2013] QCA 225 Gotterson JA and Atkinson and Martin JJ 16/08/2013

General Civil Appeal — where a Mr Stevens was the registered proprietor of land — where at the time when orders were made, proceeds of sale were anticipated to arise upon the exercise by the Bank of a power of sale conferred on it by a Bill of Mortgage registered in its favour against the titles to the land — where the State’s interest in first, the land and then, the proceeds of sale of it arose pursuant to provisions of the Criminal Proceeds Confiscation Act 2002 (Qld) — where a restraining order was in place — where there was a non-intentional breach of the restraining order — where consideration of illegality must be made of the effect of non-intentional breach of the restraining order — whether the advances made by the respondent Bank were void — whether the respondent Bank had a legally enforceable right to recover the further indebtedness created by those advances — where none of the precedents cited by the State stands as authority for a principle of general law that any transaction entered into in breach of a court order is void and unenforceable without regard for the character of the breach — where the precedents do indicate that the transaction will be unenforceable where it is entered into with intent to breach the order but even in such a case, the transaction may be enforced by an innocent party to it who has acted bona fide and given good consideration for it — where in legislating for avoidance of a dealing in property where there is intention to defeat a restraining order, the provisions of s 52(3) rather imply that the legislature did not intend that a dealing with property where there is no such intent also be void — where the advances made by the Bank, which arose when the withdrawals by transfer were made were not void — where the Bank’s right to recover the further indebtedness created by those advances was a right that was legally enforceable — where the Bank’s interest in the land as a security was increased by the amount of that indebtedness. Appeal dismissed with costs.

Wolters v The University of the Sunshine Coast [2013] QCA 228 Margaret McMurdo P and Gotterson JA and A Lyons J 20/08/2013

General Civil Appeal — where the appellant, Wolters, was employed by the University of the Sunshine Coast as a security guard — where the appellant claimed negligence against her employer for damages for personal injury based on an incident at her workplace as a result of another employee’s conduct (Mr Bradley) — where the primary judge found that the University had failed to investigate an earlier incident involving the respondent and another employee — where the University knew that Mr Bradley had verbally abused this other employee and that he had behaved in a threatening manner — where Mr Bradley undertook an informal discussion with respect to this incident from a person he regarded as a mentor — where the primary judge found that it was untenable to plead that the University took reasonable and appropriate steps to investigate the fellow employee’s allegations, when it did not investigate them — where the primary judge found that a reprimand and counselling by the mentor would have been appropriate to fulfil the University of the Sunshine Coast’s duty of care — where the focus of the hypothetical inquiry undertaken ought to have been upon whether the incident involving the appellant would have been avoided had Mr Bradley been reprimanded and counselled appropriately after the initial incident — where the same behavioural deficiency attended the incident the subject of the litigation — whether the hypothetical inquiry undertaken by the primary judge miscarried for failure to indentify the content of the reprimand and counselling that ought to have been given to Mr Bradley. Appeal allowed. Orders set aside. Judgment entered for Wolters for the sum of $364,008.06 plus costs.

Connollys Lawyers Pty Ltd v Davis [2013] QCA 231 Fraser and Gotterson JJA and Daubney J 23/08/2013

Application for Leave s 118 DCA (Civil) — where the respondent had retained the applicant to act as his solicitor in two separate proceedings — where the parties signed a written costs agreement for each proceeding — where the respondent had difficulty reading, but signed the agreements upon the insistence of the applicant — where, after the termination of the retainers, the costs in both proceedings had exceeded the original estimates — where the costs in the property proceeding (which had not yet been tried) amounted to $134,124.13 as against the original estimate of total costs inclusive of the trial of between $37,000 and $67,000 — where in the domestic violence proceeding, the applicant billed total costs of $63,850.31 as against the original estimate of between $27,000 and $46,000 — where the respondent alleged the applicant failed to meet its obligations under Part 3.4 of the Legal Profession Act 2007 (Qld) (‘the Act’), including by failing to make adequate disclosure — where the Magistrates Court granted summary judgment in favour of the applicant — where, on appeal, the respondent acknowledged that his pleading was defective but that the affidavit material disclosed a defence of breach of the costs agreement — where the District Court judge allowed the respondent’s appeal and allowed the respondent to file an amended defence and application to set aside the costs agreement under s 328 of the Act — whether the respondent’s evidence raised a real defence on the ground that the applicant did not comply with its disclosure obligations under ss 308(1)(c), 314 and 315 of the Act — whether the District Court judge erred in setting aside the summary judgment — where in the absence of evidence from the applicant of sufficient force to justify summary rejection of the respondent’s version it was necessary to proceed upon the assumption that the respondent’s evidence might be accepted at trial — where upon that evidence it would be open to a trial judge to find that the applicant’s oral estimate of a range of fees comprehending both matters was substantially lower than the sum of the estimates in the disclosure notices, the respondent signed the acknowledgments in the disclosure notices without reading them in reliance upon that incorrect oral estimate and under pressure from the applicant, the disclosure notices were placed in front of the respondent only for a period of time sufficient for him to sign them, having regard to the effect of the respondent’s brain injury that period of time was insufficient for him to read the printed acknowledgments much less the content of either notice, copies of the notices were not left with the respondent, and the applicant knew each of those facts — where the proper conclusion is that the respondent’s evidence raised a real issue requiring resolution at a trial whether the applicant failed to comply with its obligation under s 315 of the Act. Application refused with costs.

Orsay Holdings Pty Ltd v Mecanovic & Ors [2013] QCA 232 Holmes JA and Atkinson and Philip McMurdo JJ 23/08/2013

Application for Leave Queensland Civil and Administrative Tribunal Act — where a tenant brought action against a landlord for damages for breach of the covenant for quiet enjoyment — where tenant alternatively sought compensation under s 43 of the Retail Shop Leases Act 1994 (Qld) (RSL Act) — where their complaint was that the applicant moored a large vessel immediately in front of their restaurant, blocking water views and causing a significant fall in its trade — where damages and compensation sought for periods before and after the expiry of the lease — where landlord argued QCAT did not have jurisdiction to award compensation under s 43 after expiry of the lease — where lease remained a “retail shop lease” after its expiry — where tenant’s claim for damages for breach of covenant was a “retail tenancy dispute” — whether QCAT has jurisdiction to award compensation under s 43 after expiry of the lease — whether QCAT has jurisdiction to award damages for breach of covenant for quiet enjoyment after the expiry of the lease — where according to s 150(3) of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”), an appeal may be made to this court against such a decision only on a question of law and with the court’s leave — where this was a periodic tenancy from 1 July 2009, so that s 43 provided a right to compensation only for the conduct prior to then — where after 1 July 2009 this remained a “retail shop lease” as defined in the RSL Act, and the claim for damages under the general law for an interference with the respondents’ quiet enjoyment of the premises raised a “retail tenancy dispute” as there defined — where although the right to compensation under s 43 was excluded (for the period from 1 July 2009), QCAT had jurisdiction to determine this claim as one founded in the general law, for breach of the applicant’s obligation to provide quiet enjoyment of the premises — where therefore, QCAT had jurisdiction to resolve the dispute — where the applicant submits that there was an error of law which affected the outcome because the mooring of this boat was a use of the jetty which the parties must have contemplated at the commencement of the lease — where the reasons of the appeal tribunal do not refer to this point — where this was not considered by the appeal tribunal because the point was not taken before the appeal tribunal by the present applicant — where the appeal tribunal did not have to consider whether the reasoning of the original tribunal on this point was incorrect and the fact that this point was not considered by the appeal tribunal does not indicate an error of law on its part — where the decision of the original tribunal on this point may have involved an error, but it was one of fact — whether particular conduct constitutes a breach of the covenant of quiet enjoyment is a question of fact. Application refused with costs (brief).

 NK Collins Industries Pty Ltd v The President of the Industrial Court of Queensland & Anor [2013] QCA 179 Holmes and Fraser JJA and Margaret Wilson J 12/07/2013

Tep v ATS Australasian Technical Services Pty Ltd [2013] QCA 180 Holmes and Gotterson JJA and Douglas J 12/07/2013

Dempsey v Legal Practitioners Admissions Board [2013] QCA 193 Chief Justice and Holmes JA and Mullins J 19/07/2013 

Application for Admission — where the applicant’s name was removed from the roll of legal practitioners after the Legal Practice Tribunal found him guilty of two charges of unsatisfactory professional conduct, and four charges of professional misconduct — where the applicant’s offending conduct included dishonestly transferring funds from his trust account to his general account and charging excessive fees — where the applicant’s conduct was deliberate, and involved the sustained deception of clients and in one case, the Legal Practice Tribunal — where the applicant had initially failed to admit any wrongdoing and rejected the findings of the Legal Practice Tribunal but now deposed that he accepted responsibility for his wrong-doing and had sought professional help — where at least one of the applicant’s former clients is still owed money under the Legal Practice Tribunal’s orders — where the burden of establishing that he should be re-admitted is on the applicant — where the court’s role is not punitive; it is to protect the public interest and the interests of the profession — where one must question whether this court could properly hold the applicant out to the public as a reliable practitioner when there remains at least one client out of pocket from his previous practice — where there has been nothing placed before this court which could satisfy it that the applicant would no longer exhibit the kind of disregard of his clients’ interests in favour of his own, with whatever accompanying dishonesty he thought necessary to achieve his ends, which led to the tribunal’s recommendation that he be removed from the roll — where this court would be reckless, indeed, to hold him out to the public as a fit and proper person to practise on the current state of evidence. Application for re-admission dismissed.

Verhagen & Anor v Millard [2013] QCA 202 Margaret McMurdo P and Atkinson and Martin JJ 26/07/2013

Application for Leave s 118 DCA (Civil) — Further Order — where the applicants’ application for leave to appeal judgment under s 118 District Court of Queensland Act 1967 (Qld) was refused with costs — where both parties were granted leave to make submissions as to the respondent’s proposed application for a different costs order — where the respondent subsequently applied for indemnity costs — where the respondent had not sought such an order in his written submissions or orally in Court and had not sought leave to apply for an indemnity costs order after the hearing, as required by Practice Direction 3 of 2013 — where the respondent contends that the applicants rejected a reasonable offer to settle, had no real prospect of a successful appeal, abandoned a fundamental part of their argument before the primary judge, sought to argue a point not litigated at trial and would not have brought the application had they been properly advised — where the primary judge had found in favour of the respondent — where the applicants’ application involved a small monetary amount — where there were a number of unusual features of this case which support Mr Millard’s application — where he had the benefit of a favourable judgment from Judge Andrews and, very reasonably, he encouraged the Verhagens to abandon their unpromising appeal process by offering not to seek his costs up until 27 November 2012 — where the Verhagens rejected that offer — where the compromise agreement they relied on was an attempt to circumvent Judge Tutt’s order of 3 October 2008, after they made a forensic decision not to appeal from that order — where this offended the public policy interest in the finality and authority of court orders — where the Verhagens, in pursuing their appeal rights from Judge Andrews’ orders, have unreasonably put Mr Millard to further expense concerning, first, a 2008 and then a 2012 final court order in his favour — whether the remarkable combination of circumstances of this case support an application for costs on the indemnity basis. Applicants to pay the respondent’s costs of and incidental to the application on the indemnity basis

Hwang v Lawrie & Anor [2013] QCA 204 Holmes and Fraser JJA and Mullins J 30/07/2013

General Civil Appeal — where the appellant appealed against a judgment requiring her to repay funds obtained through fraud and undue influence — where the respondents contended that the Court should not hear the appellant because of her prima facie contempt of orders of the Court below — where those orders included four made in an earlier ancillary proceeding between the parties and the judgment orders in the proceeding the subject of this appeal — whether there is an absolute bar on a party in contempt being heard or whether the court has a discretion to hear the contemnor — whether contempt of orders in a different but related proceeding should attract the application of the rule or discretion — whether the interests of justice militate in favour of permitting an appellant to challenge the correctness of the orders of which he or she is prima facie in contempt — where counsel for the appellant submitted that the appellant wished to take steps to purge her contempt — whether the Court should exercise its discretion to hear the appellant and deal with the appeal on its merits — whether this court should treat the question of whether a party in contempt will be heard as one of discretion, which, in general terms, depends on where the interests of justice lie — where the appellant was found to have acted unconscionably and defrauded and exercised undue influence over her husband, the first respondent, in obtaining control of large sums of money from his bank accounts and those of his company, the second respondent — where the appellant did not give evidence at the trial — where the appellant submitted that the trial judge overlooked matters raised in her “Defence”, placed too much weight on the evidence of the respondents, and failed to take “language and cultural barriers” into account — where the “Defence” document filed by the appellant in no way conformed with the Uniform Civil Procedure Rules 1999 and was unsupported by any affidavit material — where the appellant submitted that a “contractual issue” had been overlooked — where for evidence of this, counsel pointed to the newspaper articles which accompanied the “Defence”, which he described as Mr Lawrie’s “advertisements” for a wife — where the newspaper articles were by no stretch of the imagination admissible, nor were they even tendered as evidence; had they been, they showed nothing more than that a Korean match-making agency was touting an unnamed Australian millionaire as a lucrative marital prospect — where there was no evidence of anything remotely approaching a contract before the learned primary judge — where no evidence of language or cultural barriers was placed before the trial judge — where the appellant was represented at the trial; she had been represented previously — whether in all the circumstances the trial judge erred in entering judgment for the respondents. Appeal dismissed with costs

 CRIMINAL APPEALS