Kimtran Pty Ltd v Downie - [2003] QCA 424

SUPREME COURT OF QUEENSLAND

CITATION:

Kimtran P/L & Anor v Downie & Anor [2003] QCA 424

PARTIES:

KIMTRAN PTY LTD and BIRCHCROFT PTY LTD
(appellants/respondents)
v
PHILIP GRAEME DOWNIE and SUSAN RUTH CARTER
(respondents/applicants/appellants)

FILE NO/S:

Appeal No 5473 of 2003
DC No 4448 of 2002

DIVISION:

Court of Appeal

PROCEEDINGS:

Application for extension of time
Application for leave s118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

26 September 2003

DELIVERED AT:

Brisbane

HEARING DATE:

1 September 2003

JUDGES:

McMurdo P, Dutney and Philippides JJ
Separate reasons for judgement of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal allowed
2. Set aside orders made in the District Court and in lieu thereof order the respondent to pay the costs of the appeal and of the appeal to the District Court to be assessed on the standard basis

CATCHWORDS:

PROCEDURE - COSTS – JURISDICTION OF QUEENSLAND BUILDING TRIBUNAL TO AWARD COSTS AGAINST A THIRD PARTY - liquidators’ personal liability for costs - where appellants are the liquidators of a company in liquidation - where company in liquidation ordered to pay the costs of an application for security for costs and an application to strike out the proceedings – where application for an order that the liquidators pay those costs refused by the Queensland Building Tribunal – where Tribunal concluded there was no jurisdiction to award costs against the liquidators

PROCEDURE - COSTS - where an order for costs against the company in liquidation would be unlikely to result in an effective indemnity – where propriety of liquidators’ conduct not in question – exercise of discretion

PRACTICE AND PROCEDURE – EXERCISE OF JUDICIAL DISCRETION – whether the learned primary judge erred in the exercise of his discretion to make the costs orders against liquidators - where the learned primary judge was wrong in the extent to which he considered his discretion was constrained – where discretion therefore miscarried – discretion exercised afresh by this Court

Commercial and Consumer Tribunal Act 2003 (Qld), s 71
District Court Act 1967 (Qld), s 118
Queensland Building Services Authority Act 1991 (Qld),
s 61(1), s 95(1)

Belar Pty Ltd (in liq) v Mahaffey [2000] 1 Qd R 477, discussed
In re W Powell & Sons [1896] 1 Ch 681, referred to
Kemp v Coastal Constructions Pty Ltd [1993] QCA 076; Appeal No 171 of 1992, 17 March 1993, considered and distinguished
Knight v FP Special Assets Ltd (1992) 174 CLR 178, discussed and followed
Mahaffey v Belar Pty Ltd [1999] QCA 2; Appeal No 8239 of 1997, 16 March 1999, discussed
Re Kemp [1994] 1 Qd R 285, cited
Walker Corporation Ltd v Winton [1997] QDC 125; District Court 819 of 1996, 30 May 1997, referred to
Walter v McBride (1995) 36 NSWLR 440, considered and followed

COUNSEL:

DJS Jackson QC, with him MJF Burnett for the appellants/respondents
P Hackett for the respondents/applicants/appellants

SOLICITORS:

Gadens Lawyers for the appellants/respondents
H Drakos…

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.

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Details

Case: [2003] QCA 424
Decision Date: 26 September 2003

CaseChat Overview and Summary

Kimtran Pty Ltd v Downie is a case that involves the liquidators of a company in liquidation, who were ordered to pay the costs of an application for security for costs and an application to strike out the proceedings. The Queensland Building Tribunal had refused to award the costs against the liquidators, concluding that it had no jurisdiction to do so. The liquidators appealed against this decision. The legal issues that the court had to decide were whether the Tribunal had jurisdiction to award costs against the liquidators and whether the propriety of the liquidators' conduct was in question. The court also had to consider whether the order for costs against the company in liquidation would be unlikely to result in an effective indemnity.

The court found that the Tribunal had no jurisdiction to award costs against the liquidators, as the costs would be unlikely to result in an effective indemnity. The court also found that the propriety of the liquidators' conduct was not in question, and therefore the exercise of discretion was appropriate. The court exercised its discretion afresh and found that the primary judge had erred in the extent to which he considered his discretion was constrained. The court found that the discretion miscarried and set aside the orders made in the District Court. Instead, the court ordered the respondent to pay the costs of the appeal and of the appeal to the District Court to be assessed on the standard basis.

Orders

Orders of the court

1. Appeal allowed

2. Set aside orders made in the District Court and in lieu thereof order the respondent to pay the costs of the appeal and of the appeal to the District Court to be assessed on the standard basis

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:	Kimtran P/L & Anor v Downie & Anor [2003] QCA 424
PARTIES:	KIMTRAN PTY LTD and BIRCHCROFT PTY LTD (appellants/respondents) v PHILIP GRAEME DOWNIE and SUSAN RUTH CARTER (respondents/applicants/appellants)
FILE NO/S:	Appeal No 5473 of 2003 DC No 4448 of 2002
DIVISION:	Court of Appeal
PROCEEDINGS:	Application for extension of time Application for leave s118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	26 September 2003
DELIVERED AT:	Brisbane
HEARING DATE:	1 September 2003
JUDGES:	McMurdo P, Dutney and Philippides JJ Separate reasons for judgement of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal allowed 2. Set aside orders made in the District Court and in lieu thereof order the respondent to pay the costs of the appeal and of the appeal to the District Court to be assessed on the standard basis
CATCHWORDS:	PROCEDURE - COSTS – JURISDICTION OF QUEENSLAND BUILDING TRIBUNAL TO AWARD COSTS AGAINST A THIRD PARTY - liquidators’ personal liability for costs - where appellants are the liquidators of a company in liquidation - where company in liquidation ordered to pay the costs of an application for security for costs and an application to strike out the proceedings – where application for an order that the liquidators pay those costs refused by the Queensland Building Tribunal – where Tribunal concluded there was no jurisdiction to award costs against the liquidators PROCEDURE - COSTS - where an order for costs against the company in liquidation would be unlikely to result in an effective indemnity – where propriety of liquidators’ conduct not in question – exercise of discretion PRACTICE AND PROCEDURE – EXERCISE OF JUDICIAL DISCRETION – whether the learned primary judge erred in the exercise of his discretion to make the costs orders against liquidators - where the learned primary judge was wrong in the extent to which he considered his discretion was constrained – where discretion therefore miscarried – discretion exercised afresh by this Court Commercial and Consumer Tribunal Act 2003 (Qld), s 71 District Court Act 1967 (Qld), s 118 Queensland Building Services Authority Act 1991 (Qld), s 61(1), s 95(1) Belar Pty Ltd (in liq) v Mahaffey [2000] 1 Qd R 477, discussed In re W Powell & Sons [1896] 1 Ch 681, referred to Kemp v Coastal Constructions Pty Ltd [1993] QCA 076; Appeal No 171 of 1992, 17 March 1993, considered and distinguished Knight v FP Special Assets Ltd (1992) 174 CLR 178, discussed and followed Mahaffey v Belar Pty Ltd [1999] QCA 2; Appeal No 8239 of 1997, 16 March 1999, discussed Re Kemp [1994] 1 Qd R 285, cited Walker Corporation Ltd v Winton [1997] QDC 125; District Court 819 of 1996, 30 May 1997, referred to Walter v McBride (1995) 36 NSWLR 440, considered and followed
COUNSEL:	DJS Jackson QC, with him MJF Burnett for the appellants/respondents P Hackett for the respondents/applicants/appellants
SOLICITORS:	Gadens Lawyers for the appellants/respondents H Drakos…