Courtney v Chalfen - [2020] QCA 294

SUPREME COURT OF QUEENSLAND

CITATION:

Courtney v Chalfen [2020] QCA 294

PARTIES:

SIMON CHRISTOPHER COURTNEY
(appellant)
v
ELEANOR SOPHIE CHALFEN
(respondent)

FILE NO/S:

Appeal No 7938 of 2020
SC No 2178 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2020] QSC 195 (Williams J)

DELIVERED ON:

18 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

16 November 2020

JUDGES:

Morrison and Philippides and Mullins JJA

ORDERS:

1.   Application filed on 27 July 2020 struck out.

2.   Appeal dismissed.

3.   The respondent file and serve any submissions on the question of costs of the appeal and application, limited to five pages, by 4 pm on 11 January 2021.

4.   The appellant file and serve any submissions in response, limited to five pages, by 4 pm on 25 January 2021.

5.   The question of costs be resolved on the papers.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN GRANTED – where the appellant resided in the Cayman Islands for a time – where the respondent is a resident of Grand Cayman in the Cayman Islands – where the appellant and respondent were married – where they lived in the respondent’s apartment in the Cayman Islands and the appellant stored some of his property in a guest bedroom – where in August 2016 some of the appellant’s property was placed in a rented storage unit – where the rental on that storage unit was paid for by the respondent’s mother – where the appellant commenced proceedings for conversion and breach of a bailment condition – where the respondent filed a conditional notice of intention to defend and then applied for orders setting aside service of the claim and statement of claim or, alternatively, permanently staying the proceedings – where that application came before the learned primary judge who made orders on 26 June 2020 that the proceedings be permanently stayed – where the appellant challenges that order on a variety of grounds – whether there was error in staying the proceedings under r 127(2)(b) Uniform Civil Procedure Rules 1999 (Qld)

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – WRONG PRINCIPLE – GENERALLY – where the learned primary judge considered whether r 127(2)(b) Uniform Civil Procedure Rules 1999 (Qld) was applicable – where, in doing so, the learned primary judge recorded a contention advanced by the respondent to the effect that when considering whether r 127(2)(b) was engaged, one relevant factor was whether the appellant would have obtained a grant of leave under r 126 if such an application had been made – whether the learned primary judge erred by taking into account whether it was unlikely that leave would have been granted, had it been applied for under r 126 Uniform Civil Procedure Rules 1999 (Qld)

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – APPEALS AS TO…

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: [2020] QCA 294
Decision Date: 18 December 2020

CaseChat Overview and Summary

The case of Courtney v Chalfen involved an appeal by the appellant against the orders made by the primary judge to permanently stay the proceedings, and to order that no costs be awarded to either party. The appellant and respondent were married and had lived in the Cayman Islands, where the appellant stored some of his property in a rented storage unit paid for by the respondent's mother. The appellant commenced proceedings for conversion and breach of bailment condition, and the respondent applied for the proceedings to be permanently stayed. The primary judge made orders on 26 June 2020 that the proceedings be permanently stayed and on 24 July 2020 ordered the appellant to pay the costs of the proceedings below. The appellant challenged both orders.

The court considered whether the primary judge erred in staying the proceedings under r 127(2)(b) Uniform Civil Procedure Rules 1999 (Qld). The court found that the primary judge did not err in considering whether it was unlikely that leave would have been granted, had it been applied for under r 126 Uniform Civil Procedure Rules 1999 (Qld). The primary judge's consideration of this factor was not a misapplication of the inappropriate forum test. The court also found that the primary judge's orders made on 26 June 2020 did not reflect the intention to give the opportunity to the respondent to pursue an order for costs, and were therefore amenable to being set aside.

The appeal was dismissed, and the court ordered the respondent to file and serve any submissions on the question of costs of the appeal and application, limited to five pages, by 4 pm on 11 January 2021. The appellant was ordered to file and serve any submissions in response, limited to five pages, by 4 pm on 25 January 2021. The question of costs was to be resolved on the papers.

Orders

Orders of the court

1. Application filed on 27 July 2020 struck out.

2. Appeal dismissed.

3. The respondent file and serve any submissions on the question of costs of the appeal and application, limited to five pages, by 4 pm on 11 January 2021.

4. The appellant file and serve any submissions in response, limited to five pages, by 4 pm on 25 January 2021.

5. The question of costs be resolved on the papers.

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

I also agree with the additional reasons of Mullins JA.Conclusion I propose the following orders:1.Application filed on 27 July 2020 struck out.2.Appeal dismissed.3.The respondent file and serve any submissions on the question of costs of the appeal and application, limited to five pages, by 4 pm on 11 January 2021.4.The appellant file and serve any submissions in response, limited to five pages, by 4 pm on 25 January 2021.5.The question of costs be resolved on the papers. PHILIPPIDES JA: I agree with the reasons for judgment of Morrison JA and the orders proposed by his Honour. I also agree with the additional comments of Mullins JA. MULLINS JA: I agree with the reasons of Morrison JA for disposing of the appeal and the proposed orders. In relation to the application filed by the appellant on 27 July 2020 within the appeal purporting to seek orders in respect of the costs orders made by the learned primary judge on 24 July 2020, I also agree with Morrison JA that the application is incompetent and should be struck out. It is apparent the primary judge made an error in making orders numbered 2 and 3, when the reasons in Courtney v Chalfen [2020] QSC 115 were published on 26 June 2020, as the intention expressed by the primary judge in [124] of the reasons was to give the opportunity to Ms Chalfen as the applicant to pursue an order for costs. That intention was inconsistent with making an order of “no order as to costs” which was a final order that there be no order for costs in favour of either party. The orders made on 26 June 2020 that did not reflect that intention were therefore amenable to being set aside pursuant to r 667(2)(d) of the Uniform Civil Procedure Rules 1999 (Qld).

Ratio Decidendi

Legal Principle Established

Finally, it was contended that there were some subsidiary errors on the part of the learned primary judge to do with the impact of the matrimonial proceedings in the Cayman Islands, whether the gold was the subject of jurisdiction of the Grand Court of the Cayman Islands, and whether there was a conflict between the issues considered in the Cayman Islands and those in Queensland.Consideration – misapplication of the inappropriate forum test? The appellant’s contention that the learned primary judge had misapplied the test relevant to the application of r 127(2)(b) of the UCPR should be rejected. It proceeds on a misunderstanding of the reasoning of the learned primary judge. Her Honour turned to r 127(2)(b) at paragraph [87] of the reasons below, explicitly noting the submission by the then applicant that the Supreme Court of Queensland was an inappropriate forum. Then, after having noted the submission made by the then applicant that it was a relevant consideration to that question as to whether leave would have been granted under r 126 of the UCPR, the learned primary judge expressly noted the submission calling r 127(2)(b) in aid of a stay. It is true that her Honour observed that “The reality is that many of the same factors are considered under r 126(4) and r 127(2)(b) UCPR in the balancing exercise to be undertaken by the Court”. However, as will become apparent, that is an unobjectionable observation. The learned primary judge then set out (in paragraphs [92], [93] and [94] of the reasons below) the various factors taken into account by her Honour in respect of the consideration of whether leave would have been granted under r 126(4) UCPR. Her Honour concluded that leave would not have been granted under that rule.[25][25]Reasons below at [95]. Her Honour then noted the submission by the then applicant that even if leave had been granted under r 126 UCPR, nonetheless the proceedings should be stayed under r 127.[26] It was in that context that her Honour gave consideration to the decision in Regie Nationale des Usines Renault SA v Zhang[27] upon which the current appellant then relied. As observed earlier, the High Court in that case did not depart from what was said in Voth. To the contrary, it summarised Voth by adopting a passage from its decision in Henry v Henry:[28]“In Voth, this Court adopted for Australia the test propounded by Deane J in Oceanic Sun, namely, that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or, vexatious, in the sense of “productive of serious and unjustified trouble and harassment”. It was also held in Voth that, in determining whether the local court is a clearly inappropriate forum, “the discussion by Lord Goff in Spiliada of relevant ‘connecting factors’ and ‘a legitimate personal or juridical advantage’ provides valuable assistance”.[26]Reasons below at [96].[27](2002) 210 CLR 491; [2002] HCA 10.[28](1996) 185 CLR 571 at 587; [1996] HCA 51; internal references omitted.

CITATION:	Courtney v Chalfen [2020] QCA 294
PARTIES:	SIMON CHRISTOPHER COURTNEY (appellant) v ELEANOR SOPHIE CHALFEN (respondent)
FILE NO/S:	Appeal No 7938 of 2020 SC No 2178 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – [2020] QSC 195 (Williams J)
DELIVERED ON:	18 December 2020
DELIVERED AT:	Brisbane
HEARING DATE:	16 November 2020
JUDGES:	Morrison and Philippides and Mullins JJA
ORDERS:	1. Application filed on 27 July 2020 struck out. 2. Appeal dismissed. 3. The respondent file and serve any submissions on the question of costs of the appeal and application, limited to five pages, by 4 pm on 11 January 2021. 4. The appellant file and serve any submissions in response, limited to five pages, by 4 pm on 25 January 2021. 5. The question of costs be resolved on the papers.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN GRANTED – where the appellant resided in the Cayman Islands for a time – where the respondent is a resident of Grand Cayman in the Cayman Islands – where the appellant and respondent were married – where they lived in the respondent’s apartment in the Cayman Islands and the appellant stored some of his property in a guest bedroom – where in August 2016 some of the appellant’s property was placed in a rented storage unit – where the rental on that storage unit was paid for by the respondent’s mother – where the appellant commenced proceedings for conversion and breach of a bailment condition – where the respondent filed a conditional notice of intention to defend and then applied for orders setting aside service of the claim and statement of claim or, alternatively, permanently staying the proceedings – where that application came before the learned primary judge who made orders on 26 June 2020 that the proceedings be permanently stayed – where the appellant challenges that order on a variety of grounds – whether there was error in staying the proceedings under r 127(2)(b) Uniform Civil Procedure Rules 1999 (Qld) APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – WRONG PRINCIPLE – GENERALLY – where the learned primary judge considered whether r 127(2)(b) Uniform Civil Procedure Rules 1999 (Qld) was applicable – where, in doing so, the learned primary judge recorded a contention advanced by the respondent to the effect that when considering whether r 127(2)(b) was engaged, one relevant factor was whether the appellant would have obtained a grant of leave under r 126 if such an application had been made – whether the learned primary judge erred by taking into account whether it was unlikely that leave would have been granted, had it been applied for under r 126 Uniform Civil Procedure Rules 1999 (Qld) PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – APPEALS AS TO…