Averono & Anor v. Mbuzi & Anor - [2007] QCA 174

SUPREME COURT OF QUEENSLAND

CITATION:

Averono & Anor v Mbuzi & Anor [2007] QCA 174

PARTIES:

MARCO ADAMO AVERONO and ANNABEL LOUISE AVERONO
(respondents)
v
JOSIYAS ZIFNANA MBUZI and VAINESS BANDA MBUZI
(applicants/appellants)

FILE NO/S:

Appeal No 359 of 2007
SC No 10869 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

21 May 2007

JUDGES:

McMurdo P, Holmes JA and Fryberg J
Judgment of the Court

ORDER:

Appeal dismissed with costs to be assessed

CATCHWORDS:

PROCEDURE – COSTS – APPEALS AS TO COSTS – where appellants claimed judges had made wrong orders for costs – where primary judge making costs orders must give leave to appeal those orders – where leave not sought or obtained by appellants – whether the case fell under s 253 Supreme Court Act 1995 (Qld) – whether appeal incompetent

PROCEDURE – COSTS – APPEALS AS TO COSTS – where no valid reason given why the costs orders should be altered – where no evidence supporting grounds of appeal –whether even if regularly made, the appeal was without merit

Supreme Court Act 1995 (Qld), s 253
Uniform Civil Procedure Rules 1999 (Qld), r 667

Greig v Stramit Corporation Pty Ltd [2004] 2 Qd R 17, considered
MAM Mortgages Ltd (in liq) v Daskam Pty Ltd [2002] QCA 187; Appeal No 5364 of 2001, 31 May 2002, applied

COUNSEL:

J Z Mbuzi appeared on his own behalf and on behalf of V B Mbuzi
R J Lynch for the respondent

SOLICITORS:

J Z Mbuzi appeared on his own behalf and on behalf of V B Mbuzi
David Colwell & Company for the respondents

THE COURT: Mr Josiyas Zifnana Mbuzi represented himself and his wife, Vainess Banda Mbuzi, in this appeal. He has in recent years gained some experience in the Supreme Court of Queensland appearing on his own behalf in a dispute with his neighbours, Marco Adamo Averono and Annabel Louise Averono, the respondents to this appeal, over an easement: see Averono & Anor v Mbuzi & Anor.[1]
[1][2005] QCA 295; Appeal No 1254 of 2005, 16 August 2005; [2005] QSC 61; BS10869 of 2004, 31 March 2005 and [2005] QSC 6, 21 January 2005.

On 15 February 2005 Muir J dealt with applications initiated by each of the parties. Muir J ordered that the Mbuzis' application filed on 4 February 2005 be dismissed and that the Mbuzis pay the Averonos' costs of and incidental to that application to be assessed on the standard basis. His Honour also ordered that, until the determination of the relief sought in the Averonos' amended originating application or earlier order, the Mbuzis not carry out or cause to be carried out any works on the land within two specified registered easements; further prevent, impede or restrict the ability of vehicles of any description to pass and re-pass over the said land and that they not interfere with…

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.

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Details

Case: [2007] QCA 174
Decision Date: 29 May 2007

CaseChat Overview and Summary

Averono & Anor v. Mbuzi & Anor is a case concerning an appeal against costs orders made by the primary judge. The appellants, Averono and another party, argued that the judges had made incorrect orders for costs in their favour. The case was heard in the Queensland Supreme Court, where the appellants contested the appropriateness of the costs orders. The primary judge had required the appellants to seek leave before appealing the costs orders, a requirement established under section 253 of the Supreme Court Act 1995 (Qld). However, the appellants did not seek or obtain this leave, raising a preliminary question about the competence of their appeal.

The court examined whether the case fell under the specified section of the Supreme Court Act 1995 (Qld) that required leave to be obtained for an appeal on costs. The appellants contended that the case should be exempt from this requirement, but the court found otherwise, determining that the case did indeed fall within the scope of the Act. Furthermore, the appellants failed to provide a valid reason or present evidence to support their contention that the costs orders should be altered. The court concluded that even if the appeal had been properly made, it was without merit due to the absence of a valid reason for altering the orders.

The court dismissed the appeal, finding that the appellants did not meet the necessary criteria to appeal the costs orders without obtaining leave, and they provided no valid reasons or evidence to support their appeal. Consequently, the appeal was deemed incompetent, and the final order was that the appeal be dismissed with costs to be assessed.

Orders

Orders of the court

Appeal dismissed with costs to be assessed

Background

Background to the litigation

Full text does not contain this section.

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:	Averono & Anor v Mbuzi & Anor [2007] QCA 174
PARTIES:	MARCO ADAMO AVERONO and ANNABEL LOUISE AVERONO (respondents) v JOSIYAS ZIFNANA MBUZI and VAINESS BANDA MBUZI (applicants/appellants)
FILE NO/S:	Appeal No 359 of 2007 SC No 10869 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	29 May 2007
DELIVERED AT:	Brisbane
HEARING DATE:	21 May 2007
JUDGES:	McMurdo P, Holmes JA and Fryberg J Judgment of the Court
ORDER:	Appeal dismissed with costs to be assessed
CATCHWORDS:	PROCEDURE – COSTS – APPEALS AS TO COSTS – where appellants claimed judges had made wrong orders for costs – where primary judge making costs orders must give leave to appeal those orders – where leave not sought or obtained by appellants – whether the case fell under s 253 Supreme Court Act 1995 (Qld) – whether appeal incompetent PROCEDURE – COSTS – APPEALS AS TO COSTS – where no valid reason given why the costs orders should be altered – where no evidence supporting grounds of appeal –whether even if regularly made, the appeal was without merit Supreme Court Act 1995 (Qld), s 253 Uniform Civil Procedure Rules 1999 (Qld), r 667 Greig v Stramit Corporation Pty Ltd [2004] 2 Qd R 17, considered MAM Mortgages Ltd (in liq) v Daskam Pty Ltd [2002] QCA 187; Appeal No 5364 of 2001, 31 May 2002, applied
COUNSEL:	J Z Mbuzi appeared on his own behalf and on behalf of V B Mbuzi R J Lynch for the respondent
SOLICITORS:	J Z Mbuzi appeared on his own behalf and on behalf of V B Mbuzi David Colwell & Company for the respondents