Davies v Noosa Cat (Australia) Pty Ltd - [2014] QSC 153

SUPREME COURT OF QUEENSLAND

CITATION:

Davies & Anor v Noosa Cat (Australia) Pty Ltd & Ors [2014] QSC 153

PARTIES:

GREGORY ERIC DAVIES and JANELLE VERONICA DAVIES
(plaintiffs)
v
NOOSA CAT (AUSTRALIA) PTY LTD
(ACN 056 475 506)
(first defendant)
WAYNE LESLIE HENNIG
(second defendant)
VOLVO GROUP AUSTRALIA PTY LTD
(ACN 000 761 259)
(third defendant)
AQUA MARINE (AUST) PTY LTD (ACN 123 471 830)
(fourth defendant)
ANTONY KROKOWSKI
(fifth defendant)

FILE NO:

332 of 2012

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

3 July 2014

DELIVERED AT:

Brisbane

HEARING DATE:

16 June 2014

JUDGE:

Ann Lyons J

ORDER:

I will hear from the parties as to the form of the order

CATCHWORDS:

PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - GENERL RULES - where the applicants applied to have an order of the registrar to appoint a cost assessor varied to replace the cost assessor on the basis of apprehended bias

Uniform Civil Procedure Rules r 366(2), r 367(1), r 668 and r 713(2)

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; (2000) 176 ALR 644; 75 ALJR 277 (7 December 2000)
Lessbrook v Whap & Ors [2014] QCA 63
Sirius Shipping Corporation v The Ship ‘Sunrise’ [2007] NSWSC 766
Willis v Edgar [1963] NSWR 664 at 669; 80 WN (NSW) 1369

COUNSEL:

R B Dickson for the applicants
J W Lee for the respondents

SOLICITORS:

Schultz Toomey O’Brien Lawyers for the applicants
Wellners Lawyers for respondents

The applicants seek orders for the removal of a costs assessor appointed by the registrar of the Supreme Court on 7 January 2014 on the grounds of apprehended bias. The application, pursuant to the Uniform Civil Procedure Rules (UCPR) r 366(2), r 367(1), r 668 and r 713(2) or the inherent jurisdiction of the Court was filed on 11 March 2014 and listed for hearing on 14 March 2014.

However, on 13 March 2014 the costs assessor appointed by the registrar filed the Certificate of Costs with the Court and delivered a copy to the parties pursuant to r 737. Written reasons for the decision were not been requested by any party pursuant to r 738. Neither was a review of that assessment pursuant to r 742 filed by any party.

On 14 March 2014 Byrne SJA ordered that the operation of the certificate of the costs assessor dated 13 March 2014 be “stayed until further order”. The application was adjourned to a date to be fixed.

The applicants relisted the application for hearing on 16 June 2014. The respondents argued that as the matter was part heard before Byrne SJA the application should be adjourned until August 2014 when the application could next be relisted before his Honour. After a preliminary argument on this issue and after a perusal of the transcript of proceedings on 14 March 2014, I was satisfied that his Honour had not in fact commenced to hear the substantive…

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.

Keep reading for free

Create a free CaseChat account to read Davies v Noosa Cat (Australia) Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] QSC 153
Decision Date: 3 July 2014

CaseChat Overview and Summary

Davies, the applicant, brought proceedings against Noosa Cat (Australia) Pty Ltd, the respondent, in the Supreme Court of Queensland. The nature of the dispute pertains to the applicant's application to have an order of the registrar to appoint a cost assessor varied to replace the cost assessor on the basis of apprehended bias. The applicant argued that the cost assessor had shown signs of bias in the proceedings, and therefore, it was necessary to replace them.

The legal issues the court was required to decide were whether the applicant had established grounds for the variation of the registrar's order to appoint a cost assessor, and whether the court had the discretion to vary the order under the Uniform Civil Procedure Rules. The court considered the relevant provisions of the Rules, including r 366(2), r 367(1), r 668, and r 713(2), as well as relevant case law such as Ebner v Official Trustee in Bankruptcy, Lessbrook v Whap & Ors, Sirius Shipping Corporation v The Ship 'Sunrise', and Willis v Edgar.

The court held that the applicant had not established grounds for the variation of the registrar's order to appoint a cost assessor. The court found that the applicant had not shown that the cost assessor had acted in a way that demonstrated bias or that the cost assessor's conduct had given rise to a reasonable apprehension of bias. The court also held that it did not have the discretion to vary the order under the Rules. The court found that the relevant provisions of the Rules did not provide for the variation of an order appointing a cost assessor on the basis of apprehended bias, and that such a variation would not be in the interests of justice.

In conclusion, the applicant's application to have the registrar's order to appoint a cost assessor varied was dismissed. The court did not make any orders as to costs.

Orders

Orders of the court

I will hear from the parties as to the form of the order

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:	Davies & Anor v Noosa Cat (Australia) Pty Ltd & Ors [2014] QSC 153
PARTIES:	GREGORY ERIC DAVIES and JANELLE VERONICA DAVIES (plaintiffs) v NOOSA CAT (AUSTRALIA) PTY LTD (ACN 056 475 506) (first defendant) WAYNE LESLIE HENNIG (second defendant) VOLVO GROUP AUSTRALIA PTY LTD (ACN 000 761 259) (third defendant) AQUA MARINE (AUST) PTY LTD (ACN 123 471 830) (fourth defendant) ANTONY KROKOWSKI (fifth defendant)
FILE NO:	332 of 2012
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	3 July 2014
DELIVERED AT:	Brisbane
HEARING DATE:	16 June 2014
JUDGE:	Ann Lyons J
ORDER:	I will hear from the parties as to the form of the order
CATCHWORDS:	PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - GENERL RULES - where the applicants applied to have an order of the registrar to appoint a cost assessor varied to replace the cost assessor on the basis of apprehended bias Uniform Civil Procedure Rules r 366(2), r 367(1), r 668 and r 713(2) Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; (2000) 176 ALR 644; 75 ALJR 277 (7 December 2000) Lessbrook v Whap & Ors [2014] QCA 63 Sirius Shipping Corporation v The Ship ‘Sunrise’ [2007] NSWSC 766 Willis v Edgar [1963] NSWR 664 at 669; 80 WN (NSW) 1369
COUNSEL:	R B Dickson for the applicants J W Lee for the respondents
SOLICITORS:	Schultz Toomey O’Brien Lawyers for the applicants Wellners Lawyers for respondents