Dwyer v Nel

Case [2021] QCA 165

SUPREME COURT OF QUEENSLAND

CITATION:

Dwyer v Nel [2021] QCA 165

PARTIES:

WAYNE GEOFFREY DWYER
(appellant)
v
MARIA JOHANNA NEL
(respondent)

FILE NO/S:

Appeal No 13267 of 2020
DC No 151 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


District Court at Brisbane – [2020] QDC 282 (Jones DCJ)

DELIVERED ON:

10 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

11 May 2021

JUDGES:

Holmes CJ and Bond JA and Williams J

ORDERS:

1.   The appeal is dismissed.

2.   The appellant pay the respondent’s costs of the appeal on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – PARTIES AND NON-PARTIES – NON-PARTIES GENERALLY – DIRECTOR OF COMPANY – where the respondent brought proceedings against the defendant company in the District Court for damages in relation to the negligent design and construction of the roof of a dwelling – where the appellant was the sole director of the defendant – where the appellant, a non-party to the District Court proceedings, was ordered to pay the respondent’s costs of the substantive proceedings to be assessed on the indemnity basis – where the appellant appeals against the non-party costs order – where the appellant submits that the primary judge erred in law in making an order that the appellant pay the respondent’s costs of the substantive proceeding on the indemnity basis – where the appellant relies upon several alleged errors to conclude that the primary judge erred in law and in fact in finding that the circumstances justified the making of the costs order against the appellant – where the appellant submits that the primary judge erred in law and in fact in finding that the circumstances justified making the costs order against the appellant and in so making that order – whether the trial judge erred – whether the interests of justice favour a non-party costs order being made against the appellant

Civil Proceedings Act 2011 (Qld), s 15
Uniform Civil Procedure Rules 1999 (Qld), r 5

FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340, cited
Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, applied
Kebaro Pty Ltd v Saunders [2003] FCAFC 5, cited
Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28, applied
KMB v Legal Practitioners Admissions Board (Queensland) (No 2) [2018] 1 Qd R 500; [2017] QCA 146, cited
Nel v Octoclay Pty Ltd (formerly Dwyer Corporation Pty Ltd t/as Dwyer Quality Homes) [2020] QDC 200, cited
Vanguard 2017 Pty Ltd v Modena Properties Pty Ltd (No 2) [2018] FCA 1461, cited
Yates v Boland [2000] FCA 1895, cited

COUNSEL:

C Jennings QC for the appellant
P A Travis for the respondent

SOLICITORS:

Sajen Legal for the appellant
Axia Litigation Lawyers for the respondent

  1. HOLMES CJ:  I agree with the reasons of Williams J…

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AGLC
Dwyer v Nel [2021] QCA 165
Case
[2021] QCA 165
Decision Date

CaseChat Overview and Summary

The case of Dwyer v Nel involves the appellant, who was the sole director of the defendant company, appealing a decision from the District Court where he was ordered to pay the respondent's costs of the substantive proceedings on an indemnity basis. The respondent had brought proceedings against the defendant company for damages related to the negligent design and construction of the roof of a dwelling. Despite not being a party to the District Court proceedings, the appellant was ordered to pay the respondent's costs due to his role as the sole director.

The primary legal issue before the court was whether the trial judge erred in ordering the appellant to pay the respondent's costs on the indemnity basis. The appellant argued that the primary judge had erred in law and in fact in finding that the circumstances justified making the costs order against him. The court had to determine if the interests of justice favoured a non-party costs order against the appellant, considering the various alleged errors presented by the appellant.

The court re-exercised its discretion and found that the interests of justice supported a non-party costs order against the appellant. Despite acknowledging an error in the trial judge's finding regarding the divesting of assets, the court concluded that the same non-party costs order was appropriate. Consequently, the appeal was dismissed. Given the respondent's success, the court also ordered that the appellant pay the respondent's costs of the appeal on the standard basis.

The court's final orders were that the appeal be dismissed and that the appellant pay the respondent's costs of the appeal on the standard basis. This decision underscores the court's approach to non-party costs orders, highlighting the importance of the interests of justice in such determinations.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant pay the respondent’s costs of the appeal on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In re-exercising the costs discretion, the interests of justice support a non-party costs order being made against the appellant. Accordingly, the appropriate order is that the appellant pay the plaintiff’s costs of the substantive proceedings on an indemnity basis.Conclusion As is evident from these reasons, whilst an error was established in respect of the trial judge’s finding as to the divesting of assets, on the re-exercise of the costs discretion, the same non-party costs order is the appropriate order. Consequently, the appeal is dismissed. Further, as the respondent has been successful, the appropriate costs order on the appeal is that the appellant pay the respondent’s costs of the appeal on the standard basis.

Ratio Decidendi

Legal Principle Established

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