Khoury v Kooij
[2025] QCA 134
•29 July 2025
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 2024DIVISION:
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 papersSOLICITORS:
No appearance for the applicant
Fox & Company Lawyers for the respondent
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.
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.
The Court considered the application on 18 July 2025 and reserved its decision.
The first interlocutory order
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.
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.”
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]Uniform Civil Procedure Rules 1999 (Qld) (UCPR), r 681.
The merit of the proposed grounds of appeal
The applicant’s proposed grounds of appeal in respect of the first order have no merit.
His proposed ground that the first order was punitive or penal is wrong. So is his contention that the first order was contrary to equitable principles. An alleged lack of information about the total legal fees incurred by the respondent is not a basis to set aside a costs order. His contention that he was denied procedural fairness by the absence of an itemised costs statement or an estimate of costs, before the first order was made, is also wrong. So too is his contention that the principles of natural justice were undermined by the lack of an opportunity to assess the “legitimacy and proportionality” of the respondent’s costs before the first order was made.[2]
[2]Chapter 17A of the UCPR provides for procedural fairness in the cost assessment process after a costs order has been made.
The general principle that costs follow the event applies equally to represented and unrepresented parties in civil litigation in the Court. It also applies to a party granted leave to appear remotely. Those proposed grounds of appeal have no merit.
Whether her Honour could have (or another judge would have) made an order different to the first order, on the basis that the applicant was suffering financial hardship, is not a sound ground of appeal. The applicant has not identified an apparent error in her Honour’s exercise of the discretion, or a wrong principle, consideration of an extraneous or irrelevant matter, a mistake of fact, or a material consideration not taken into account. Nothing in the proposed amended notice of appeal could found a successful challenge to the first order in accordance with the established principles in House v The King.[3]
[3](1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ).
The explanation for the delay
The applicant did not explain the delay of six months before he sought leave to appeal the first order. On 16 December 2024, the applicant informed the respondent’s solicitor, by email, that he would not appeal the first order. The 28 day period for commencing an appeal expired on 18 December 2024. The apparent explanation for the delay is that the applicant decided not to appeal, before the period for filing an appeal expired. That is not a satisfactory explanation.
The detriment to the respondent
After the applicant advised the respondent that he would not appeal the first order, the respondent had her costs assessed. That process was completed before the applicant sought leave to appeal.
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.”
As noted above, three months before filing his stay application, the applicant had notified the respondent that he would not appeal the first order. When the stay application was heard before the primary judge, the applicant had not sought leave to appeal the first order. He gave no indication that he intended to do so. It appears the applicant was seeking to use the availability of a stay under r 740(3) to undo the effect of the first order, having decided not to appeal.
The applicant was entirely unsuccessful in the stay application. His application was dismissed.
Like the first order, the second order was interlocutory, and a discretionary decision. The above observations about such orders apply to the second order. The second order also reflected the same considerations of fairness and policy referred to above at [6]. However, the second order entitles the respondent (as the successful party) to be compensated for her costs to a greater extent than the first order, as her costs of the stay application are to be assessed on the indemnity basis, rather than on the standard basis.
The merits of the proposed grounds of appeal
The applicant’s proposed grounds of appeal against the refusal to stay enforcement of the Registrar’s order are expressed in this way:
“The refusal to stay the costs order gave rise to procedural unfairness and imposed disproportionate hardship on the [Applicant], who is a self-represented litigant acting in a lawful fiduciary capacity. The Court failed to consider the imbalance created by this hardship, thereby breaching principles of fairness and equity.”
As in his other proposed grounds of appeal, the applicant uses terms with a distinct legal meaning to express a case or a ground without any legal substance.
The position remains that the applicant has not initiated a review of the assessment of the respondent’s costs, which he was ordered to pay by the first order, and which are the subject of the Registrar’s order. It follows that, whatever the applicant intended to convey by his proposed grounds of appeal, there was and is no merit in the applicant’s application for a stay under r 740(3).
If, as it appeared to the primary judge, the applicant’s purpose in seeking a stay was to “backtrack” or undo the first order, then the pursuit of an appeal from the second order could not achieve that purpose and would have no utility.
There is no merit in an appeal against the whole of the second order.
The applicant’s proposed ground that there was a “miscarriage of judicial discretion” characterises an indemnity costs order as “disproportionate” and “punitive”. His contention that the order was “unsupported by findings of misconduct or unreasonableness” appears to assume that those bases are the only ones that justify such an order.
This Court has observed that, ordinarily, an order for indemnity costs would be made only where circumstances warrant a departure from the usual order, by which the costs would be assessed on the standard basis, and some evidence of unusual circumstances or unreasonable conduct.[6]
[6]Grice v State of Queensland [2005] QCA 298 at [6] (McMurdo P; McPherson and Williams JJA agreeing), citing Di Carlo v Dubois [2002] QCA 225 at [35]-[38] (White J; Williams JA and M Wilson J agreeing).
The primary judge’s reasons identify the following conduct by the applicant as “sufficient to form a level of satisfaction that it is appropriate to award costs on an indemnity basis”:
(a)Raising at the stay hearing numerous issues repeatedly in relation to matters that were heard and determined by Justice Muir;
(b)Raising serious and wide-ranging allegations of impropriety, including fraud, without clearly outlining the factual foundation for them;
(c)Making veiled statements in submissions about complaints to authorities in relation to conduct of the proceeding, with no apparent proper foundation;
(d)Increasing the length of the hearing by referring to irrelevant material;
(e)Pursuing the stay application when its deficiencies had been pointed out in writing more than a month before the applicant filed it; and
(f)Proceeding with the stay application where the precursor of the application had been identified as “doomed to fail”.
On an “impressionist analysis”, without expressing any concluded view, an appeal from the second order, limited to the indemnity basis of assessment, seems arguable. Again, as a matter of mere impression, the costs the parties would incur in such an appeal would likely exceed the difference between the respondent’s costs of the stay application assessed on the indemnity basis and those costs assessed on the standard basis.
The explanation for the delay
The applicant filed his application for leave to appeal 45 days after the second order was made. He says he had “attempted to file” a notice of appeal electronically on 9 May 2025, 28 days after the second order. The registry does not offer electronic filing. So, no document was filed that day.
The applicant’s communications with the registry at that time, which were copied to the respondent’s solicitor, show that he requested a copy of the second order by an email he sent at 4.25 pm on 9 May 2025, and that he sent the first proposed notice of appeal to the respondent’s solicitor as an attachment to an email at 8.10 pm that day. He told the respondent’s solicitor that he had filed the notice of appeal that day and that the email was “formal service” of it.
The applicant’s delay in commencing the appeal process was short at about 17 days. Even with an explanation that is, in some respects, less than satisfactory, that of itself should not result in a refusal to extend time to seek leave to appeal.
The detriment to the respondent
There would be no apparent detriment to the respondent, were time to be extended in respect of an application for leave to appeal the second order.
Conclusion on an extension of time to appeal the second order
Given the lack of merit in the applicant’s application for a stay and its related lack of utility, leave should not be granted to appeal the whole of the second order. An extension of time would allow the applicant to challenge only the basis of assessment of the respondent’s costs of the application for a stay. The Court is to apply the rules, including those with respect to an extension of time to appeal, “with the objective of avoiding undue delay, expense and technicality” and facilitating the “just and expeditious resolution of the real issues in civil proceedings at a minimum of expense”. The remaining possible subject matter of an appeal is not one of the real issues between the parties in the substantive proceeding. Facilitating such an appeal, by extending the time, would not serve the objective of avoiding undue expense. In the circumstances, the Court should refuse to extend the time.
Is the application “incompetent”?
The applicant’s request for an extension of time should be refused for other reasons. So, the respondent’s submission about another basis to refuse an extension may be considered briefly.
The respondent submitted that the proposed appeal against the first and the second orders was “incompetent” because the applicant had not obtained the leave of either primary judge under s 64 of the Supreme Court of Queensland Act 1991 before the filing of a notice of appeal.
The requirement for leave under s 64 need not be satisfied before a party commences an appeal. A party who wishes to pursue an appeal from a costs order must obtain leave to do so before the appeal is heard and determined. This is consistent with the opinion about the predecessor to s 64, expressed obiter dictum, by Keane JA in Morrison v Hudson.[7] As this Court observed in recently in Trouton v Trouton:
“There would be many applications for extension of time to appeal, if the leave of the primary judge or another judge of the Trial Division had to be obtained pursuant to s 64(1) for an appeal only in relation to costs before the notice of appeal was even filed in this Court and therefore within 28 days of the date of the order for costs.”[8]
[7][2006] 2 Qd R 465 at [18].
[8][2025] QCA 128 at [4] (Mullins P and Flanagan and Brown JJA).
The respondent’s alternative submission should be rejected.
Final disposition
The order of the Court should be:
The application for an extension of time in which to appeal is dismissed with costs.
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