Lessbrook Pty Ltd (in liq) v Whap - [2014] QCA 63

SUPREME COURT OF QUEENSLAND

CITATION:

Lessbrook Pty Ltd (in liq) v Whap; Stephen; Bowie; Kepa & Kepa [2014] QCA 63

PARTIES:

In Appeal No 9231 of 2013:
LESSBROOK PTY LTD (in liquidation)
ACN 010 855 875
(appellant)
v
MIMIA WHAP FOR THE ESTATE & DEPENDANTS OF HELENA WOOSUP (DECEASED)
(respondent)

In Appeal No 9233 of 2013:
LESSBROOK PTY LTD (in liquidation)
ACN 010 855 875
(appellant)
v
ELIZABETH STEPHEN FOR THE ESTATE & DEPENDANTS OF GORDON KRIS (DECEASED)
(respondent)

In Appeal No 9234 of 2013:
LESSBROOK PTY LTD (in liquidation)
ACN 010 855 875
(appellant)
v
FRANCIS BOWIE FOR THE ESTATE & DEPENDANTS OF MARDIE BOWIE (DECEASED)
(respondent)

In Appeal No 9236 of 2013:
LESSBROOK PTY LTD (in liquidation)
ACN 010 855 875
(appellant)
v
FLORENCE KEPA FOR THE ESTATE & DEPENDANTS OF FRED BOWIE (DECEASED)
(respondent)

In Appeal No 9237 of 2013:
LESSBROOK PTY LTD (in liquidation)
ACN 010 855 875
(appellant)
v
EMILY KEPA FOR THE ESTATE AND DEPENDANTS OF FRANK BILLY (DECEASED)
(respondent)

FILE NOS:

Appeal No 9231 of 2013
Appeal No 9233 of 2013
Appeal No 9234 of 2013
Appeal No 9236 of 2013
Appeal No 9237 of 2013
SC No 194 of 2007
SC No 195 of 2007
SC No 193 of 2007
SC No 192 of 2007
SC No 191 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

1 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

4 March 2014

JUDGES:

Muir and Gotterson JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.     The appeals be allowed.

2.     The orders made on 2 September 2013 be set aside.

3.     The respondent pay the appellants’ costs of each appeal and of the applications to the registrar.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – JUDGE MISTAKEN OR MISLED – GENERALLY – where the primary judge gave judgment against the appellant in proceedings and ordered that the appellant pay the respondent’s costs to be assessed – where the appellant and respondent filed separate applications nominating different costs assessors – where the registrar appointed a costs assessor put forward by the appellant – where the respondent applied for an appeal of the registrar’s decision – where the primary judge set aside the registrar’s order appointing the costs assessor nominated by the appellant and appointed a costs assessor nominated by the respondent – whether the primary judge erred in the exercise of his discretion in setting aside the order of the registrar appointing a costs assessor – whether the appeal is an “appeal only in relation to costs” within the meaning of the Supreme Court of Queensland Act 1991 (Qld) – whether the appellant should be granted leave to amend its notice of appeal to include an appeal against an order of the primary judge refusing an application by the appellant for…

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: [2014] QCA 63
Decision Date: 1 April 2014

CaseChat Overview and Summary

In the matter of Lessbrook Pty Ltd (in liquidation) versus Whap, the court addressed a dispute concerning costs and the procedure for appointing a costs assessor. The case arose from proceedings where the appellant, Lessbrook Pty Ltd (in liquidation), was ordered to pay costs to the respondent, Whap. Both parties subsequently nominated different costs assessors. The registrar appointed the costs assessor nominated by the appellant, but the respondent applied for an appeal against this decision. The primary judge subsequently set aside the registrar’s order and appointed the costs assessor nominated by the respondent.

The legal issues before the court included whether the primary judge had erred in setting aside the registrar’s order and whether the appeal was limited to costs only, as defined under the Supreme Court of Queensland Act 1991. Additionally, the court considered whether the appellant should be granted leave to amend its notice of appeal to include an appeal against the primary judge's refusal of an application for leave to appeal.

The court found that the primary judge had indeed erred in setting aside the registrar’s order and thus in appointing a different costs assessor. The court held that the appeal was not strictly limited to costs, and therefore, the primary judge's decision to set aside the registrar's order was reviewable. The court also granted the appellant leave to amend its notice of appeal to include an appeal against the primary judge's refusal of leave to appeal. Consequently, the appeals were allowed, the orders made on 2 September 2013 were set aside, and the respondent was ordered to pay the appellant's costs for each appeal and the related applications to the registrar.

Orders

Orders of the court

1. The appeals be allowed.

2. The orders made on 2 September 2013 be set aside.

3. The respondent pay the appellants’ costs of each appeal and of the applications to the registrar.

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:	Lessbrook Pty Ltd (in liq) v Whap; Stephen; Bowie; Kepa & Kepa [2014] QCA 63
PARTIES:	In Appeal No 9231 of 2013: LESSBROOK PTY LTD (in liquidation) ACN 010 855 875 (appellant) v MIMIA WHAP FOR THE ESTATE & DEPENDANTS OF HELENA WOOSUP (DECEASED) (respondent) In Appeal No 9233 of 2013: LESSBROOK PTY LTD (in liquidation) ACN 010 855 875 (appellant) v ELIZABETH STEPHEN FOR THE ESTATE & DEPENDANTS OF GORDON KRIS (DECEASED) (respondent) In Appeal No 9234 of 2013: LESSBROOK PTY LTD (in liquidation) ACN 010 855 875 (appellant) v FRANCIS BOWIE FOR THE ESTATE & DEPENDANTS OF MARDIE BOWIE (DECEASED) (respondent) In Appeal No 9236 of 2013: LESSBROOK PTY LTD (in liquidation) ACN 010 855 875 (appellant) v FLORENCE KEPA FOR THE ESTATE & DEPENDANTS OF FRED BOWIE (DECEASED) (respondent) In Appeal No 9237 of 2013: LESSBROOK PTY LTD (in liquidation) ACN 010 855 875 (appellant) v EMILY KEPA FOR THE ESTATE AND DEPENDANTS OF FRANK BILLY (DECEASED) (respondent)
FILE NOS:	Appeal No 9231 of 2013 Appeal No 9233 of 2013 Appeal No 9234 of 2013 Appeal No 9236 of 2013 Appeal No 9237 of 2013 SC No 194 of 2007 SC No 195 of 2007 SC No 193 of 2007 SC No 192 of 2007 SC No 191 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	1 April 2014
DELIVERED AT:	Brisbane
HEARING DATE:	4 March 2014
JUDGES:	Muir and Gotterson JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeals be allowed. 2. The orders made on 2 September 2013 be set aside. 3. The respondent pay the appellants’ costs of each appeal and of the applications to the registrar.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – JUDGE MISTAKEN OR MISLED – GENERALLY – where the primary judge gave judgment against the appellant in proceedings and ordered that the appellant pay the respondent’s costs to be assessed – where the appellant and respondent filed separate applications nominating different costs assessors – where the registrar appointed a costs assessor put forward by the appellant – where the respondent applied for an appeal of the registrar’s decision – where the primary judge set aside the registrar’s order appointing the costs assessor nominated by the appellant and appointed a costs assessor nominated by the respondent – whether the primary judge erred in the exercise of his discretion in setting aside the order of the registrar appointing a costs assessor – whether the appeal is an “appeal only in relation to costs” within the meaning of the Supreme Court of Queensland Act 1991 (Qld) – whether the appellant should be granted leave to amend its notice of appeal to include an appeal against an order of the primary judge refusing an application by the appellant for…