Hax v TV - [2009] QCA 401

SUPREME COURT OF QUEENSLAND

CITATION:

HAX v TV [2009] QCA 401

PARTIES:

TV
(applicant)
v
HAX
(respondent)

FILE NO/S: Appeal No 8229 of 2009
SC No 624 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time/General Civil Appeal

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

24 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2009

JUDGES:

McMurdo P, Fraser JA and P Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The application to adduce new evidence is refused.

2. The application for an extension of time to appeal is refused with costs.

CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION PRINCIPLES AS TO GRANT OR REFUSAL – the applicant appealed against the substantive orders and costs order of the primary court judge – whether the applicant has prospects of success in an appeal – whether it is in the interests of justice to extend the time to appeal

Property Law Act 1974 (Qld), s 341
Supreme Court Act 1995 (Qld), s 253
Uniform Civil Procedure Rules 1999 (Qld), r 377, r 748

Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59, distinguished
Cohen v Sellar [1926] 1 KB 536, cited
HIH Casualty and General Insurance Ltd v Dascam P/L & Ors [2002] QCA 187, cited
Papathanasopoulos v Vacopoulos [2007] NSWSC 502
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited
Re Golden Casket Art Union Office [1995] 2 Qd R 346; [1994] QCA 480, cited

COUNSEL: The applicant appeared on his own behalf
The respondent appeared on her own behalf

SOLICITORS:

The applicant appeared on his own behalf
The respondent appeared on her own behalf

McMURDO P: This is an application to extend time to appeal. The background to it has some complexity. The male applicant and the female respondent commenced a de facto relationship in early 2006. In September 2006, the respondent gave birth to their child. Their relationship ended acrimoniously about a year later. The applicant lodged a caveat over the respondent's Melbourne unit. She brought an originating motion in the Supreme Court of Victoria to have his caveat removed. That motion filed in Victoria was cross-vested to the Supreme Court of Queensland at Cairns.[1] The sale of the unit went ahead on condition that half the net proceeds of the sale ($48,376.69) were to be held by the respondent's then solicitors in a term deposit on trust for the parties. On 15 August 2008, the trial judge ordered that $25,969.06 of the $48.376.69 be released to the respondent's solicitor on a trust to fund the payment of her legal and associated expenses arising from the dispute between the parties.[2] One of the questions determined at the subsequent trial in Cairns on 16 April 2009 was the orders to be made in respect of the remaining proceeds of the original…

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.

Continue reading Hax v TV

Details

AGLC: Hax v TV [2009] QCA 401
Case: [2009] QCA 401
Decision Date: 24 December 2009

CaseChat Overview and Summary

In the Supreme Court of Queensland, the applicant, Hax, appealed against the substantive orders and costs order of the primary court judge. The matter involved a dispute over the application to adduce new evidence and an extension of time to appeal. The appeal was made in the context of a broader legal disagreement between the parties, though the specifics of the underlying case were not elaborated upon in the summary.

The legal issues before the court were twofold: first, whether the applicant had a reasonable prospect of success in the appeal, and second, whether it was in the interests of justice to extend the time for the appeal. These questions required the court to consider both the merits of the appeal and the broader principles governing extensions of time in appeal cases.

In evaluating the application, the court considered the principles that guide the granting or refusal of extensions of time to appeal. It assessed the applicant's prospects of success in the appeal by examining the merits of the arguments presented. Additionally, the court weighed the interests of justice, considering factors such as the reasons for the delay and the potential impact on the respondent. Ultimately, the court concluded that the applicant did not have a reasonable prospect of success in the appeal and that it was not in the interests of justice to extend the time for appeal. Consequently, the application to adduce new evidence was refused, and the application for an extension of time to appeal was also refused with costs.

Orders

Orders of the court

1. The application to adduce new evidence is refused.

2. The application for an extension of time to appeal is refused with costs.

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:	HAX v TV [2009] QCA 401
PARTIES:	TV (applicant) v HAX (respondent)
FILE NO/S:	Appeal No 8229 of 2009 SC No 624 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time/General Civil Appeal
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	24 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	2 November 2009
JUDGES:	McMurdo P, Fraser JA and P Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application to adduce new evidence is refused. 2. The application for an extension of time to appeal is refused with costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION PRINCIPLES AS TO GRANT OR REFUSAL – the applicant appealed against the substantive orders and costs order of the primary court judge – whether the applicant has prospects of success in an appeal – whether it is in the interests of justice to extend the time to appeal Property Law Act 1974 (Qld), s 341 Supreme Court Act 1995 (Qld), s 253 Uniform Civil Procedure Rules 1999 (Qld), r 377, r 748 Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59, distinguished Cohen v Sellar [1926] 1 KB 536, cited HIH Casualty and General Insurance Ltd v Dascam P/L & Ors [2002] QCA 187, cited Papathanasopoulos v Vacopoulos [2007] NSWSC 502 R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited Re Golden Casket Art Union Office [1995] 2 Qd R 346; [1994] QCA 480, cited
COUNSEL:	The applicant appeared on his own behalf The respondent appeared on her own behalf
SOLICITORS:	The applicant appeared on his own behalf The respondent appeared on her own behalf