Colber Constructions Pty Ltd v Spicer [1991] QSCFC 36

I IN THE SUPREME COURT OF QUEENSLAND FULL COURT BEFORE : Mr. Justice McPherson S.P.J. Mr. Justice Ryan Mr. Justice Dowsett BRISBANE, 22 MARCH 1991 Appeal No. 54 of 1990 J REV! ''- ‘ ■" - - ‘ ;■ !3s;;ed ') ! Court : Gtvsau 1 !; ZJ/ w- /°1 / | 10 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporting, Court Reporting Bureau.) 20 BETWEEN : COLBER CONSTRUCTIONS PTY . LTD. ( Plaintiff) Respondent - and - 30 WARREN GEORGE SPICER (Defendant ) Appellant 30 40 50 JUDGMENT MR. JUSTICE McPHERSON: This is an application to strike out an appeal for want of prosecution. A brief history of the matter is that the judgment appealed from was given in the sum of $22,586 by way of judgment sum, and a further sum of $16,000 in respect of interest. The judgment was given in the District Court by His Honour Judge Boyce on 14 May 1990 after a three —day trial. The notice of appeal, one may observe, was filed on 7 June 1990, which means that it was filed on the l„ast of the 21 days allowed under the rules for appealing. A bankruptcy notice has since issued against the defendant but those proceedings have been deferred or 60 —Govt. Printer, Qld. 40 50 60 1 [1991] QSCFC 36 -- 1 of 3 -- 10 20 30 40 50 60 intercepted by the present appeal. The defendant did nothing to pursue the appeal after it had been instituted, with the consequaice that the plaintiff applied to this Court for an order to strike out for want of prosecution. On 5 September last year this Court made an order that a sum of $20,000 be paid into Court on account of the judgment, and that that be done by a date which I believe was 19 September. At the time the matter was then before the Court the solicitor acting for the defendant deposed that the appeal record had been ordered. That statement was correct at the time it was made. However, some three or so days later the solicitor for the defendant, acting no doubt on instructions from the client, countermanded the order for the record, and the instructions to prepare it were withdrawn. There is still no record in the case. The defendant has deposed that he hopes to have the funds for the preparation of the record very soon, and his solicitor gives an undertaking to ensure that it is prepared within a short time. There has been an oral examination of the defendant with respect to his assets. It is not necessary for me to go further than to say that, to my mind, the material disclosed arouses suspicions about the extent of the defendant's assets, and his tendency to dispose of them in the time between the appeal and its determination. We were pressed to the effect that he should be allowed one more chance to put this appeal before the Court. After considering the matter with some care, I have come to the conclusion, in conjunction, I believe with my 10 2Q 30 /' '\ 40 50 60 — Govt. Printer, Qld. 2 -- 2 of 3 -- I 1 10 20 ( 30 40 brothers, that there should be the following orders: first, that there should be paid to the plaintiff in part satisfaction of the judgment including interest and costs (that is the judgment appealed against) the sum of $20,000 together with accretions if any, paid into Court pursuant to the order of 5 September 1990; secondly, that there should be an order that unless on or before 28 March 1991 - (a) the necessary fee for preparation of the appeal record is duly paid to the Court Reporting Bureau, and (b) the defendant pays to the plaintiff the unpaid balance of the said judgment after payment of the sum referred to in paragraph 1 of this order including interest, and also interest accruing since the date of the judgment, then the appeal stands dismissed with costs. I would also order that the defendant pay the plaintiffs' costs of and incidental to this motion. 10 20 30 MR. JUSTICE RYAN: I agree. MR. JUSTICE DOWSETT: I also agree. MR. JUSTICE McPHERSON: That will be the order of the Court. 40 50 50 60 — Govt. Printer, Qld. 60 3 -- 3 of 3 --