Moreton Resources Ltd (Receivers Appointed) v Kirk - [2025] QSC 198

SUPREME COURT OF QUEENSLAND

CITATION:

Moreton Resources Ltd (Receivers Appointed) v Kirk [2025] QSC 198

PARTIES:

MORETON RESOURCES LTD ACN 060 111 784 (RECEIVERS APPOINTED)
(first applicant)

MRV METALS PTY LTD ACN 610 100 402 (RECEIVERS APPOINTED)
(second applicant)

ALEXANDER JASON ELKS
(third applicant)

v

DARRYL EDWARD KIRK AS RECEIVER OF MORETON RESOURCES LTD ACN 060 111 784 (RECEIVERS APPOINTED) AND MRV METALS PTY LTD ACN 610 100 402 (RECEIVERS APPOINTED)
(first respondent)

MELGEAR PTY LTD ACN 056 330 646
(second respondent)

FILE NO/S:

BS 495/25

DIVISION:

Trial division

PROCEEDING:

Originating application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 August 2025

DELIVERED AT:

Brisbane

HEARING DATE:

29 May 2025. Further written submissions delivered by the applicants on 5 June 2025, and by the respondents on 13 June 2025.

JUDGE:

Cooper J

ORDER:

The answers to the preliminary questions are as follows:

Question 1(a): Are the applicants (or any of them) a “third party payer” within the definition of s 301 of the LPA?

The first and second applicants are each a non-associated third party payer within the meaning of s 301(3) of the LPA in respect of all of the legal costs which they have sought to have assessed in the originating application filed on 4 February 2025.

The third applicant is a non-associated third party payer within the meaning of s 301(3) of the LPA in respect of the legal costs which are the subject of paragraph 5 of the orders made on 11 September 2023 in proceeding number BS 12986/21.

Question 1(c): Does the answer to question 1(a) mean that the applicants (or any of them) are not permitted to apply for the assessment of some or all of the costs referred to in the Application?

Pursuant to s 335(2) of the LPA, each of the first and second applicants are permitted to apply for an assessment of all of the legal costs which they have sought to have assessed in the originating application filed on 4 February 2025.

Pursuant to s 335(2) of the LPA, the third applicant is permitted to apply for an assessment of the legal costs which are the subject of paragraph 5 of the orders made on 11 September 2023 in proceeding number BS 12986/21.

Question 1(d): Should the court exercise its discretion pursuant to r 743C of the UCPR to give directions for an itemised bill to be prepared, filed and served in respect of some or all of the costs referred to in the Application?

No.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – TAXATION AND ASSESSMENT OF COSTS – APPLICATIONS AND REFERENCES – where the first and second applicants charged property as security for the repayment of a debt owed to debenture holders – where that security was held in trust for the debenture holders by the second respondent – where the first and second applicants indemnified the second respondent for loss and damage it incurred as trustee of the security – where the first respondent…

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.

Keep reading for free

Create a free CaseChat account to read Moreton Resources Ltd (Receivers Appointed) v Kirk and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] QSC 198
Decision Date: 26 August 2025

CaseChat Overview and Summary

In Moreton Resources Ltd (Receivers Appointed) v Kirk, the applicants sought to determine the status of certain parties as third-party payers and their entitlement to apply for the assessment of legal costs. The applicants included Moreton Resources Ltd and its receivers, as well as Kirk, who had been ordered to pay some of the respondents' legal costs. The dispute involved complex questions of statutory interpretation and the application of the Legal Profession Act 2007 (Qld) and the Uniform Civil Procedure Rules 1999 (Qld).

The court was tasked with deciding whether the applicants qualified as third-party payers under the Legal Profession Act, whether they were entitled to apply for the assessment of legal costs, and whether the court should order an itemised bill to be prepared and served. The primary issue was the interpretation of the term "third party payer" in section 301 of the Legal Profession Act and the application of this definition to the specific circumstances of the case. Additionally, the court had to consider the implications of section 335(2) of the Act and rule 743C of the Uniform Civil Procedure Rules.

The court found that the first and second applicants qualified as non-associated third-party payers under section 301(3) of the Legal Profession Act. Consequently, they were permitted to apply for the assessment of the legal costs in question. The third applicant was also identified as a non-associated third-party payer regarding specific legal costs. The court ruled that these applicants could apply for the assessment of the relevant costs as permitted by section 335(2) of the Act. However, the court decided against directing that an itemised bill be prepared, filed, and served, under rule 743C of the Uniform Civil Procedure Rules.

The court’s decision clarified the status of the parties as third-party payers and their rights to apply for the assessment of legal costs. The court's findings ensured that the applicants could proceed with their applications for the assessment of legal costs, while the refusal to order an itemised bill maintained the balance between procedural fairness and the practicalities of litigation.

Orders

Orders of the court

The answers to the preliminary questions are as follows:

Question 1(a): Are the applicants (or any of them) a “third party payer” within the definition of s 301 of the LPA?

The first and second applicants are each a non-associated third party payer within the meaning of s 301(3) of the LPA in respect of all of the legal costs which they have sought to have assessed in the originating application filed on 4 February 2025.

The third applicant is a non-associated third party payer within the meaning of s 301(3) of the LPA in respect of the legal costs which are the subject of paragraph 5 of the orders made on 11 September 2023 in proceeding number BS 12986/21.

Question 1(c): Does the answer to question 1(a) mean that the applicants (or any of them) are not permitted to apply for the assessment of some or all of the costs referred to in the Application?

Pursuant to s 335(2) of the LPA, each of the first and second applicants are permitted to apply for an assessment of all of the legal costs which they have sought to have assessed in the originating application filed on 4 February 2025.

Pursuant to s 335(2) of the LPA, the third applicant is permitted to apply for an assessment of the legal costs which are the subject of paragraph 5 of the orders made on 11 September 2023 in proceeding number BS 12986/21.

Question 1(d): Should the court exercise its discretion pursuant to r 743C of the UCPR to give directions for an itemised bill to be prepared, filed and served in respect of some or all of the costs referred to in the Application?

No.

Background

Background to the litigation

For reasons which follow, the remaining preliminary questions should be answered as follows:Question 1(a): Are the applicants (or any of them) a “third party payer” within the definition of s 301 of the LPA?The first and second applicants are each a non-associated third party payer within the meaning of s 301(3) of the LPA in respect of all of the legal costs which they have sought to have assessed in the originating application filed on 4 February 2025.The third applicant is a non-associated third party payer within the meaning of s 301(3) of the LPA in respect of the legal costs which are the subject of paragraph 5 of the orders made on 11 September 2023 in Supreme Court proceeding number BS 12986/21.Question 1(c): Does the answer to question 1(a) mean that the applicants (or any of them) are not permitted to apply for the assessment of some or all of the costs referred to in the Application?Pursuant to s 335(2) of the LPA, each of the first and second applicants are permitted to apply for an assessment of all of the legal costs which they have sought to have assessed in the originating application filed on 4 February 2025.Pursuant to s 335(2) of the LPA, the third applicant is permitted to apply for an assessment of the legal costs which are the subject of paragraph 5 of the orders made on 11 September 2023 in Supreme Court proceeding number BS 12986/21.Question 1(d): Should the court exercise its discretion pursuant to r 743C of the UCPR to give directions for an itemised bill to be prepared, filed and served in respect of some or all of the costs referred to in the Application?No.Background The Receiver was appointed to MRV, on 25 September 2020, by Mr Feitelson and A & J Consultancy Pty Ltd (debenture holders under the Secured Debenture Deed), acting on behalf of First Samuel (another debenture holder under the Secured Debenture Deed and, at that time, the security trustee appointed under the Security Trust Deed). On 25 May 2022, the Receiver was appointed to MRL by Melgear, which, by that time, had been appointed as security trustee under the Security Trust Deed in place of First Samuel. The Receiver engaged solicitors, Colin Biggers & Paisley (CPB), to act for him in relation to matters concerning the receivership of MRV and MRL. The work undertaken includes general advice in relation to each receivership, transactional work associated with the sale of assets and acting for the Receiver in the litigation that has occurred through the course of the receiverships, including (but not limited to) the Proceeding. Melgear also engaged CPB to act for it in relation to matters concerning its role as security trustee, the receiverships of MRV and MRL, and litigation that has occurred through the course of the receiverships, including (but not limited to) the Proceeding. Initially, the legal costs incurred by the Receiver were paid by Mr Feitelson. In 2021, the Receiver sold the secured property, which comprised mining assets of MRV, for approximately $6.5 million.

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:	Moreton Resources Ltd (Receivers Appointed) v Kirk [2025] QSC 198
PARTIES:	MORETON RESOURCES LTD ACN 060 111 784 (RECEIVERS APPOINTED) (first applicant) MRV METALS PTY LTD ACN 610 100 402 (RECEIVERS APPOINTED) (second applicant) ALEXANDER JASON ELKS (third applicant) v DARRYL EDWARD KIRK AS RECEIVER OF MORETON RESOURCES LTD ACN 060 111 784 (RECEIVERS APPOINTED) AND MRV METALS PTY LTD ACN 610 100 402 (RECEIVERS APPOINTED) (first respondent) MELGEAR PTY LTD ACN 056 330 646 (second respondent)
FILE NO/S:	BS 495/25
DIVISION:	Trial division
PROCEEDING:	Originating application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	26 August 2025
DELIVERED AT:	Brisbane
HEARING DATE:	29 May 2025. Further written submissions delivered by the applicants on 5 June 2025, and by the respondents on 13 June 2025.
JUDGE:	Cooper J
ORDER:	The answers to the preliminary questions are as follows: Question 1(a): Are the applicants (or any of them) a “third party payer” within the definition of s 301 of the LPA? The first and second applicants are each a non-associated third party payer within the meaning of s 301(3) of the LPA in respect of all of the legal costs which they have sought to have assessed in the originating application filed on 4 February 2025. The third applicant is a non-associated third party payer within the meaning of s 301(3) of the LPA in respect of the legal costs which are the subject of paragraph 5 of the orders made on 11 September 2023 in proceeding number BS 12986/21. *Question 1(c): Does the answer to question 1(a) mean that the applicants (or any of them) are not permitted to apply for the assessment of some or all of the costs referred to in the Application?* Pursuant to s 335(2) of the LPA, each of the first and second applicants are permitted to apply for an assessment of all of the legal costs which they have sought to have assessed in the originating application filed on 4 February 2025. Pursuant to s 335(2) of the LPA, the third applicant is permitted to apply for an assessment of the legal costs which are the subject of paragraph 5 of the orders made on 11 September 2023 in proceeding number BS 12986/21. Question 1(d): Should the court exercise its discretion pursuant to r 743C of the UCPR to give directions for an itemised bill to be prepared, filed and served in respect of some or all of the costs referred to in the Application? No.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – TAXATION AND ASSESSMENT OF COSTS – APPLICATIONS AND REFERENCES – where the first and second applicants charged property as security for the repayment of a debt owed to debenture holders – where that security was held in trust for the debenture holders by the second respondent – where the first and second applicants indemnified the second respondent for loss and damage it incurred as trustee of the security – where the first respondent…