Bain Gasteen (a firm) v Dalglish & Anor
[2002] QDC 184
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- Bain Gasteen (a firm) v Dalglish & Anor[2002] QDC 184
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Bain Gasteen (a firm) v Dalglish & Anor[2002] QDC 184
Bain Gasteen (a firm) v Dalglish & Anor[2002] QDC 184
DISTRICT COURT | No 4782 of 2001 |
CIVIL JURISDICTION
JUDGE SHANAHAN
BAIN GASTEEN (A FIRM) Plaintiff
and
RAY WILLIAM DALGLISH and MAJA MARGARETTE DALGLISH Defendants
BRISBANE
DATE 24/05/2002
JUDGMENT
HIS HONOUR: This is an application that summary judgment be entered against the defendant and in favour of the plaintiff. The application was brought pursuant to rule 292 of the Uniform Civil Procedure Rules. The respondent had retained the applicant to perform legal services for him. In relation to those legal services fees were payable. In 1999, at the male respondent's request, consideration was given to formulating an arrangement where the fees would be paid.
A draft deed was formulated and supplied to the respondents for their consideration. It was entered into on the 4th of November 1999. It was headed “An acknowledgment of outstanding fees” and acknowledges on behalf of both respondents that they were jointly and severally indebted to the applicant in the sum of $57,781.85 which fees were immediately due and payable. The solicitors agreed in that deed to defer payment of the debt on certain conditions.
Firstly that the debt was paid at the earliest time between the 30th of June 2000 and no later than the 31st of December 2000 and secondly in relation to interest. It is important to note that the respondents had time to consider that deed before it was signed. They had legal advice and in fact their solicitors attended on the date of the signing of the deed. It is now suggested that the deed was entered under economic duress and that the respondents may have a claim for negligence against the applicant.
There is considerable correspondence which flowed after the signing of the deed. It was in many forms and is dated between February of 2000 and June of 2001. None of the correspondence from the respondents' solicitors raised concerns about the deed that was entered or any suggestion of negligence. In fact the tenor of that correspondence is in fact confirmatory of the deed and the arrangements that were made.
Considering the way in which such applications are to be considered in relation to rule 292 of the Uniform Civil Procedure Rules and the decided cases indicating that it is not simply a reformulation of the test which previously applied, I note the comments of Justice Wilson in McPhee v. Zarb [2002] QSC 4 that the new test calls for a more robust approach by the Court consistent with the overriding purpose of the Uniform Civil Procedure Rules being to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
In that regard the Court should give summary judgment if the prospects of defending a claim are so slim as to be found fanciful. In my view considering the way in which the allegations of economic duress and negligence have been raised, the prospects of defending the claim are in my view fanciful and have no prospect of success. The allegations were not made until this action for recovery was commenced.
In that regard I am of the view that any allegations of negligence are separate issues which can be tried in the appropriate forum. In my view they do not bear on this application. In those circumstances I am of the view that it is appropriate to award summary judgment. I accept in that regard the calculation of interest that has been supplied and is now Exhibit 2 in these proceedings.
...
HIS HONOUR: My order in this matter is that judgment is entered in favour of the plaintiff against the defendant Ray William Dalglish in the sum of $57,781.85 together with interest calculated at $14,721.83 plus the costs of and incidental to the application and the action. Such costs shall be assessed on the standard basis including any reserved costs.
In my view considering the history of the matter there is no basis to order the staying of the judgment pending the resolution of any negligence action that might be pursued.