Kelly Jo Smith v National Australia Bank Limited ABN 12 004 044 937

[2023] QCA 202

[2023] QCA 202

COURT OF APPEAL

BODDICE JA

Appeal No 3259 of 2023
DC No 2093 of 2021

KELLY JO SMITH  Appellant/Respondent

v

NATIONAL AUSTRALIA BANK LIMITED      Respondent/Applicant
ABN 12 004 044 937

BRISBANE

THURSDAY, 19 OCTOBER 2023

JUDGMENT

BODDICE JA:  The respondent makes application for an order that the appellant’s appeal be dismissed for want of prosecution.

The application was made in the following circumstances.  The appeal was filed on 15 March 2023.  It related to a judgment which had been given in the District Court of Queensland on 24 February 2023.

That judgment related to proceedings brought in respect of earlier orders for summary judgment made by the District Court on 20 July 2022.

In essence, the appellant seeks to appeal against the issue of an enforcement warrant in the proceeding which had been the subject of a summary judgment.

The enforcement warrant was issued on 1 September 2022 in relation to the recovery of possession of property at Biggera Waters in the State of Queensland.  Since that time, the warrant has in fact been executed and the property has been sold.

No steps have been taken by the appellant in respect of the appeal filed on 15 March 2023.  That is contrary to the terms of the practice direction.

The application for dismissal for want of prosecution relies essentially on not only the failure to comply with the practice direction, but also on the fact that there is a need for finality in this litigation and the appellant has no prospects of succeeding in the stated ground of appeal.

A consideration of the materials supports a conclusion that it is appropriate to dismiss the appeal for want of prosecution.  The material indicates there is little prospect of the appellant being able to succeed on the current grounds of appeal.

Essentially, the appellant asserted in the relevant District Court proceedings that the enforcement warrant ought to be set aside on the basis that the summary judgment was entered incorrectly because she had received no notice in relation to the proceedings.

The District Court judge was satisfied the appellant had in fact been served with the relevant proceedings and in those circumstances, proceeded to deal with the application.  No error is shown in relation to that approach.  Further, no error is shown in the issue of the enforcement warrant.

Whilst there was an earlier refusal of a warrant in respect of the subject property, that occurred in circumstances where there was an error in the application.  That error was corrected and the warrant was duly issued thereafter.

There was also a futility in relation to any appeal as the relevant property has now been sold.

For the abovementioned reasons, I order:

1. The appeal be dismissed for want of prosecution.

…

BODDICE JA:  The respondent makes application for costs, including that those costs be assessed on an indemnity basis.

The material indicates that the appellant has taken a number of steps which have caused costs to the respondent in relation to this subject proceeding.  Those steps have included lodging a caveat against the title to the property, as well as the various District Court proceedings and an application to the Land Court.  All of those proceedings have been unsuccessful.

Whilst that chronology is relevant, there is nothing in the appellant’s conduct in this appeal which, in my view, would warrant an order for costs being assessed on an indemnity basis.  The appeal was lodged.  It simply has not been prosecuted.

In those circumstances, the appropriate order is that costs be assessed on a standard basis.

I order that the appellant pay the respondent’s costs of the appeal, to be assessed on the standard basis.