Lal v Look Design and Development Pty Ltd

[2016] QCA 263

[2016] QCA 263

COURT OF APPEAL

GOTTERSON JA

Appeal No 7072 of 2016
DC No 19 of 2016

HITESH LAL   Applicant/Respondent

v

LOOK DESIGN AND DEVELOPMENT PTY LTD  Respondent/Applicant
ACN 130 652 701

BRISBANE

WEDNESDAY, 19 OCTOBER 2016

JUDGMENT

GOTTERSON JA:  On 9 June 2016, judgment was given in the District Court at Maroochydore requiring Hitesh Lal, the third defendant, to pay the plaintiff, Look Design and Development Proprietary Limited trading as Coast Life Homes in proceeding D19/2016 a sum of $12,150 damages for breach of contract and a further sum of $12,150 as a contractual licence fee together with interest of $501.93 and costs.  On 12 July 2016, Mr Lal filed a notice of appeal in this Court together with an application to extend time for filing it.  He has not applied for leave to appeal.

A live question is whether leave is required under s 118(3) of the District Court of Queensland Act 1967. The filed notice of appeal contends that leave is not required because the appeal is within the scope of s 118(2)(b) such that leave is not required. I would reject that contention. Section 118(2)(b) applies where the judgment relates to a claim for or relating to property that has a value equal to or more than the Magistrates Court jurisdiction. However, this judgment does not relate to a claim for property, nor does it relate to property. This Court has consistently held that s 118(2)(b) applies to judgments relating to claims for the recovery of land or other things in specie or their value and not money claims in personal actions – see Praxis Pty Ltd v Hewbridge Pty Ltd [2004] 2 Qd R 433 at paragraph 8 and more recently Coles Group Limited v Costin [2015] QCA 140 at paragraph 62.

The notice of appeal is irregular.  Not only is it filed without a grant of leave to appeal but also and particularly no leave to appeal has been sought.  I would on that basis order the original of the notice of appeal to be removed from the file and returned to the applicant.  I note that to do so would not preclude Mr Lal from filing an application for leave to appeal at some later time together with an affidavit exhibiting a proposed notice of appeal.

As to Mr Lal’s stay application, the position is, as submitted by Mr White of counsel, who appears for Look Design and Development, a decision is not subject to an appeal within the meaning of r 761(2) of the Uniform Civil Procedure Rules when an appeal lies from it only by leave and such leave has not been obtained – see Stone v Copperform Pty Ltd [2002] 1 Qd R 106 at page 107 subsequently approved in Bell v Bay-Jespersen [2004] 2 Qd R 235. Here, leave is required. It has not been sought let alone obtained. The jurisdiction under r 761(2) is not engaged. The stay application must therefore be dismissed.

The following are the orders of the Court.  On the stay application filed on 18 August 2016, the orders are:

1.Application refused.

2.Applicant to pay the respondent’s costs of the application on the standard basis.

Next, on the strike-out application filed on 29 September 2016, the orders are:

1.The original of the notice of appeal filed on 12 July 2016 is to be removed from the file and returned to the respondent to the application;

2.Any application for leave to appeal is to be filed by 9 November 2016; and

3.The respondent is to pay the applicant’s costs necessarily incurred in relation to that notice of appeal on the standard basis.  That is to say, the notice of appeal referred to in order 1.

4.The application is otherwise refused.