Amos v Wiltshire

Case [2018] QCA 208

SUPREME COURT OF QUEENSLAND

CITATION:

Amos v Wiltshire [2018] QCA 208

PARTIES:

EDWARD AMOS
(applicant)
v
CHRISTOPHER JAMES RAYMOND WILTSHIRE
(respondent)

FILE NO/S:

Appeal No 8129 of 2017
DC No 1527 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:


District Court at Brisbane – [2017] QDC 209

DELIVERED ON:

4 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

27 March 2018

JUDGES:

Sofronoff P and Flanagan and Brown JJ

ORDERS:

1.   Leave is refused.

2.   The applicant pay the respondent’s costs of and incidental to the appeal to be assessed.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – where the applicant submits that leave to appeal is not required, in reliance on amendments made to the District Court of Queensland Act 1967 (Qld), s 118 – where the respondent contends that leave to appeal is required – whether leave to appeal is required

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – where the respondent took out an enforcement warrant in respect of an order of the Court of Appeal that the applicant pay the respondent a judgment sum including interest on an amount – where the enforcement warrant miscalculated the rate of daily interest – where the respondent applied to have the warrant amended – where the applicant cross-applied to have the warrant stayed or set aside – where the applicant submits that the learned primary judge had no power under the Uniform Civil Procedure Rules 1999 (Qld) rr 371 and 375 to amend the warrant – where the applicant submits that the learned primary judge erred in refusing to set aside or stay the warrant – where the respondent resists the appeal, including on the basis that the appeal is now moot as the result of payment by the applicant to the respondent of a sum “in full and final settlement of payment of interest” – whether the appeal is moot – whether the learned primary judge erred

District Court of Queensland Act 1967 (Qld), s 118
Supreme Court of Queensland Act 1991 (Qld), sch 5
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 371, r 375, r 817

Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams (2015) 13 ASTLR 406; [2015] QCA 286, cited
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; [1981] HCA 20, cited
Chapmans Ltd v Yandell [1999] NSWCA 361, cited
Hope Downs Management Services Pty Ltd v Hamersley Iron Pty Ltd (2000) ATPR 41-733; [1999] FCA 1652, cited
Praxis Pty Ltd v Hewbridge Pty Ltd [2004] 2 Qd R 433; [2004] QCA 79, considered

COUNSEL:

F L Harrison QC, with P G Jeffery, for the applicant
P O’Shea QC, with K Boulton, for the respondent

SOLICITORS:

Keller Nall and Brown for the applicant
Sharma Lawyers…

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Details
AGLC
Amos v Wiltshire [2018] QCA 208
Case
[2018] QCA 208
Decision Date

CaseChat Overview and Summary

In the case of Amos v Wiltshire, the applicant, Mr Amos, sought to appeal the order made as to costs by the primary judge. The respondent, Mr Wiltshire, opposed the appeal on the basis that leave to appeal was required and had not been obtained. The case was heard in the Queensland Court of Appeal. The central issue before the court was whether leave to appeal was necessary and whether the appeal was moot given that Mr Amos had made payments to Mr Wiltshire. Additionally, the court had to consider whether the primary judge had the power to amend the enforcement warrant issued in respect of an order of the Court of Appeal and whether the learned primary judge erred in refusing to set aside or stay the warrant.

The court found that leave to appeal was required as stipulated by section 118B of the District Court of Queensland Act 1967 (Qld), and no proper basis had been presented for the court to grant leave now. The court concluded that there was no reasonably arguable ground of appeal raised by Mr Amos and that any appeal on the grounds raised would fail. The court further determined that the appeal was moot due to Mr Amos's payment of the sum in full and final settlement of the interest in question. The court held that no substantial injustice was suffered by Mr Amos in refusing leave to appeal, and there was no prejudice in denying leave. The court also found that the primary judge had no power to amend the enforcement warrant under the Uniform Civil Procedure Rules 1999 (Qld) and that the learned primary judge did not err in refusing to set aside or stay the warrant.

The court ordered that leave to appeal be refused and that Mr Amos pay Mr Wiltshire’s costs of and incidental to the appeal to be assessed. This decision underscores the importance of obtaining leave to appeal where required and highlights the consequences of failing to do so. The court's reasoning demonstrates a careful consideration of the statutory requirements and the practical implications of the appeal, ultimately concluding that the applicant had not demonstrated a viable basis for appeal.

Orders

Orders of the court

1. Leave is refused.

2. The applicant pay the respondent’s costs of and incidental to the appeal to be assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Amos sought to appeal the order made as to costs by the primary judge. No leave was obtained to appeal against costs as required by s 118B of the District Court of Queensland Act 1967 (Qld). Given that Mr Amos seeks to contend that the primary judge was in error in respect of his order made as to costs, regardless of the outcome of the principal appeal, leave is required. No proper basis has been submitted upon which the Court could consider now granting leave. Leave not having been obtained, I do not consider that matter further.Conclusion For the reasons set out above, I have determined that there is no reasonably arguable ground of appeal raised on behalf of Mr Amos and that any appeal on the grounds raised would fail. In light of the payments made by Mr Amos in August 2017, particularly in respect of interest which was the subject of the primary judge’s orders and the defect relied upon by Mr Amos in this appeal, and the fact that there was no stay in relation to the decision of the Court of Appeal in 2015 ordering Mr Amos to pay the monies in question, no substantial injustice is suffered by Mr Amos in refusing leave to appeal. Further, there is no prejudice in leave not being granted. A fresh warrant could be issued by Mr Wiltshire for the amount of the balance owing in relation to which interest does not accrue. I would order that leave to appeal be refused. There is no reason that costs of the appeal should not follow the event and I would order that Mr Amos pay Mr Wiltshire’s costs of and incidental to the appeal to be assessed.

Ratio Decidendi

Legal Principle Established

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