Hookey v Whitelaw - [2020] QCA 184

SUPREME COURT OF QUEENSLAND

CITATION:

Hookey & Anor v Whitelaw & Ors [2020] QCA 184

PARTIES:

SCOTT GREGORY HOOKEY
(first appellant/first applicant)
KIDS ACADEMY HOPE ISLAND PTY LTD
ACN 164 852 475 AS TRUSTEE OF THE KIDS ACADEMY HOPE ISLAND UNIT TRUST
(second appellant/second applicant)
v
JOHN BRUCE WHITELAW
(first respondent)
KA ESTATES PTY LTD ACN 600 469 887 AS TRUSTEE OF THE KA ESTATES UNIT TRUST
(second respondent)
JBW ESTATES PTY LTD ACN 600 602 819 AS TRUSTEE OF THE JBW FAMILY TRUST
(third respondent)

FILE NO/S:

Appeal No 4832 of 2020
SC No 8477 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Application for Reopening (Civil)

ORIGINATING COURT:

Supreme Court at Brisbane – [2020] QSC 63 (Flanagan J)

DELIVERED ON:

1 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Morrison JA

ORDER:

Refuse the application to re-open.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SECURITY FOR COSTS – WHERE APPLICANT SUCCESSFUL IN PROCEEDINGS – where the appellants were ordered to provide security for costs, and to pay the respondents’ costs of that application – where since delivery of the judgment the appellants have sought to re-open the case and seek a variation of the order insofar as it provided that they pay the costs of the application – where the basis of the application is that the correspondence between the parties should warrant that the existing order for costs be set aside and that the respondents be ordered to pay the appellants’ costs of the application or alternatively that they be the appellants’ costs in the appeal – whether the application for reopening should be granted

Whitelaw & Ors v Hookey & Anor [2020] QCA 145, cited

COUNSEL:

K N Wilson QC for the appellants/applicants
S C Russell (sol) for the respondents

SOLICITORS:

Van de Graff Lawyers for the appellants/respondents
Russells Law for the respondents

MORRISON JA: On 30 June 2020 I delivered reasons for the judgment on the respondents’ application for security for costs, and for a stay of the appeal.[1] Relevantly, the appellants were ordered to provide security for costs, and to pay the respondents’ costs of that application.
[1]Whitelaw & Ors v Hookey & Anor [2020] QCA 145.
Since delivery of the judgment the appellants have sought to re-open the case and seek a variation of the order insofar as it provided that they pay the costs of the application. The basis of the application is that the correspondence between the parties should warrant that the existing order for costs be set aside and that the respondents be ordered to pay the appellants’ costs of the application, or alternatively that they be the appellants’ costs in the appeal.
Normally one would be reluctant to permit a party to re-open and re-agitate such a question where, as here, the opposite parties sought an order for costs and the appellants chose to make no submission about that at the hearing. However, it is unnecessary 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.

Continue reading Hookey v Whitelaw

Details

AGLC: Hookey v Whitelaw [2020] QCA 184
Case: [2020] QCA 184
Decision Date: 1 September 2020

CaseChat Overview and Summary

Hookey v Whitelaw involved an application to reopen a civil case where the appellants were ordered to provide security for costs and to pay the respondents' costs of that application. The appellants sought to re-open the case and vary the order concerning the costs they were to pay. They argued that the existing order should be set aside and that the respondents should pay their costs of the application, or alternatively, that the respondents should pay the appellants' costs in the appeal. The central issue before the court was whether the application to reopen the case should be granted.

The court considered the legal principles governing the reopening of judgments and orders in civil proceedings. It examined the circumstances under which an order may be reopened and the criteria that should be applied in making such a decision. The court also considered the balance of convenience and the interests of justice in determining whether the application should be successful. After careful consideration, the court found that the application did not meet the necessary criteria for reopening the case. The court held that the existing order should stand and that the appellants were not entitled to have the order varied.

Accordingly, the court refused the application to reopen the case. The court's decision was based on a detailed analysis of the legal principles and the specific circumstances of the case. The court emphasised that the decision to reopen a case should be made sparingly and only in exceptional circumstances where there is a compelling reason to do so. In this case, the court found that such circumstances were not present. The court's decision was final and binding, and the appellants were not permitted to seek further variation of the order.

Orders

Orders of the court

Refuse the application to re-open.

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:	Hookey & Anor v Whitelaw & Ors [2020] QCA 184
PARTIES:	SCOTT GREGORY HOOKEY (first appellant/first applicant) KIDS ACADEMY HOPE ISLAND PTY LTD ACN 164 852 475 AS TRUSTEE OF THE KIDS ACADEMY HOPE ISLAND UNIT TRUST (second appellant/second applicant) v JOHN BRUCE WHITELAW (first respondent) KA ESTATES PTY LTD ACN 600 469 887 AS TRUSTEE OF THE KA ESTATES UNIT TRUST (second respondent) JBW ESTATES PTY LTD ACN 600 602 819 AS TRUSTEE OF THE JBW FAMILY TRUST (third respondent)
FILE NO/S:	Appeal No 4832 of 2020 SC No 8477 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Application for Reopening (Civil)
ORIGINATING COURT:	Supreme Court at Brisbane – [2020] QSC 63 (Flanagan J)
DELIVERED ON:	1 September 2020
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGE:	Morrison JA
ORDER:	Refuse the application to re-open.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SECURITY FOR COSTS – WHERE APPLICANT SUCCESSFUL IN PROCEEDINGS – where the appellants were ordered to provide security for costs, and to pay the respondents’ costs of that application – where since delivery of the judgment the appellants have sought to re-open the case and seek a variation of the order insofar as it provided that they pay the costs of the application – where the basis of the application is that the correspondence between the parties should warrant that the existing order for costs be set aside and that the respondents be ordered to pay the appellants’ costs of the application or alternatively that they be the appellants’ costs in the appeal – whether the application for reopening should be granted Whitelaw & Ors v Hookey & Anor [2020] QCA 145, cited
COUNSEL:	K N Wilson QC for the appellants/applicants S C Russell (sol) for the respondents
SOLICITORS:	Van de Graff Lawyers for the appellants/respondents Russells Law for the respondents