Khoury v Kooij

Case [2025] QCA 134

SUPREME COURT OF QUEENSLAND

CITATION:

Khoury v Kooij [2025] QCA 134

PARTIES:

MARK KHOURY
(applicant)
v
NIRA KOOIJ
(respondent)

FILE NO/S:

Appeal No 2100 of 2025
SC No 3735 of 2024

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 27 November 2024 (Muir J); Unreported, 11 April 2025 (Williams J)

DELIVERED ON:

29 July 2025

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Mullins P, Bradley JA and Morrison AJA

ORDER:

The application for an extension of time in which to appeal is dismissed with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the applicant seeks an extension of time for filing a notice of appeal against two interlocutory orders made by judges in the trial division – where the Court heard the application on the papers – whether the extension of time should be granted

Uniform Civil Procedure Rules 1999 (Qld), r 681, r 740

COUNSEL:

No appearance for the applicant, the applicant’s submissions were heard on the papers
J D Byrnes for the respondent, the respondent’s submissions were heard on the papers

SOLICITORS:

No appearance for the applicant
Fox & Company Lawyers for the respondent

  1. THE COURT:  The applicant seeks an extension of time for filing a notice of appeal against two interlocutory orders made by judges in the trial division.

  2. The applicant filed his application in the Court of Appeal on 27 May 2025.  By consent, the parties presented their respective arguments and evidence solely in writing, and the application was listed for a decision without an oral hearing.

  3. The Court considered the application on 18 July 2025 and reserved its decision.

    The first interlocutory order

  4. The first order from which the applicant would appeal was made on 27 November 2024.  It was an order that the applicant pay the respondent’s costs of an application filed by the applicant on 12 September 2024.  By that application, the applicant had sought interlocutory orders.  He was entirely unsuccessful.  The application was dismissed.

  5. In short reasons, the primary judge explained:

    “In this case I can see no reason that costs ought to not follow the event.  This is a case where, in my view, the applicant refuses to accept that there is conflicting evidence in relation to this issue of capacity and where every attempt has been made to resolve the application.  Unnecessary costs have been incurred by the respondent and it is appropriate, and I order, that the applicant pay the respondent’s costs of the interlocutory application.”

  6. The first order was a discretionary decision about the costs of an application in a proceeding.  It was consistent with the general principle that costs follow the event.[1]  It compensated the successful respondent, to some extent, for expenses she would not have incurred had the unsuccessful applicant not brought the application.  In this way it was in accord with reasons of fairness and policy.

    [1]

Continue reading Khoury v Kooij

Sign in free to access the full text

Details
AGLC
Khoury v Kooij [2025] QCA 134
Case
[2025] QCA 134
Decision Date

CaseChat Overview and Summary

In Khoury v Kooij, the applicant sought an extension of time to appeal two interlocutory orders made by judges in the trial division. The first order, made on 31 March 2025, required the applicant to pay the respondent's costs, which had been assessed by a registrar. The second order, made on 11 April 2025, required the applicant to pay the respondent's costs of an application he filed seeking a stay of the registrar's order. The Court had to decide whether to grant the applicant an extension of time to appeal both orders.

The primary judge found that the applicant had not sought leave to appeal within 28 days of the first order, and therefore the respondent had to incur costs to assess the amount payable. The judge also found that the applicant had not offered to compensate the respondent for the expenses incurred. The applicant argued that the orders were made in error and that there was no basis for them to be set aside. However, the Court found that the orders were valid and that the applicant's application for a stay was without merit. The Court held that the applicant had not provided a satisfactory explanation for his delay in seeking an extension of time, and that the respondent had relied on the applicant's decision not to appeal. The Court also found that the proposed appeal had no merit.

The Court dismissed the application for an extension of time to appeal both orders, with costs. The Court held that the applicant had not provided a satisfactory explanation for his delay, and that the respondent had relied on the applicant's decision not to appeal. The Court also found that the proposed appeal had no merit. The Court ordered that the applicant pay the respondent's costs of the application for an extension of time.

Orders

Orders of the court

The application for an extension of time in which to appeal is dismissed 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

Had the applicant sought leave to appeal within 28 days of the first order, the respondent could have deferred the costs assessment until after an appeal was heard and determined. The applicant has not offered to compensate the respondent, permanently or contingently, for the expenses she incurred when there was to be no appeal.Conclusion on an extension of time to appeal the first order Given the lack of merit in the proposed appeal, the absence of a satisfactory explanation for his delay, and the respondent’s detrimental reliance on his decision not to appeal, the Court should not extend the time for the commencement of an appeal in respect of the first order.The second order The second order was made on 11 April 2025. It was an order that the applicant pay the respondent’s costs of an application he filed on 26 March 2025. By that application, the applicant had sought a stay of a registrar’s order made on 11 March 2025. The registrar’s order was made having regard to a certificate of assessment of the respondent’s costs payable by the applicant under the first order.[4][4]Pursuant to UCPR, r 740(1). The registrar’s order took effect as a judgment of the Court.[5] Relevantly, it is a judgment for the costs the applicant was ordered to pay pursuant to the first order.[5]See UCPR, r 740(2). The applicant sought the stay under r 740(3), which authorises the Court to stay enforcement of the judgment “pending review of the assessment” on which it was based. The grounds on which the applicant pressed his stay application did not concern the assessment. The primary judge noted: “What is evident from the material is that the applicant seeks to raise many allegations in respect of the original hearing before Justice Muir, including allegations of alleged evidence tampering and various other irregularities, concerns about whether the Court has power to make the [first order] on the basis that he ‘did nothing wrong’ using his words, and also an apparent failure by the Court to regulate behaviour by the lawyers involved on behalf of the respondent.…It appears from the material relied upon by the applicant that whilst there is no appeal or application to set aside [the first order], the material seeks to raise various issues through the back door, in effect, to justify the application for a stay.In oral submissions today, the applicant has expressed that he seeks, from the Court today, in effect that the decisions that have been made be ‘backtracked’ to enable him to be able to be provided with a costs statement of the costs of the lawyers acting on behalf of the estate. Once he has had the opportunity to consider that further, then further consideration can be given to the future conduct of this matter. This fails to appreciate what has already been determined by the Court by both Justice Muir and the Registrar, and also the nature of the application which is before the Court today.…As there has been no appeal, and there is no basis before this Court today for the [first order] to be set aside [, t]he [first order] stands and is not impugned despite the various complaints which are raised by the applicant.To the extent that the application by the applicant does seek, in some way, to challenge or take issue with the decision of Justice Muir, I find that there is no basis for that.…The complaint seems to be that the applicant sees that he has done nothing wrong, and that the Judge, to some extent, was misled by the conduct of others, but again there is no proper basis before the Court to go behind the order of Justice Muir.…As indicated previously, the applicant, by this application, is seeking a form of relief which the Court cannot grant. On the application before me, there is no ability for me to, in effect, ‘backtrack’ the orders that have already been made.”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.