Popplestone v Prema Life Pty Ltd

[2019] QCA 268

[2019] QCA 268

COURT OF APPEAL

SOFRONOFF P
FRASER JA
PHILIPPIDES JA

Appeal No 9126 of 2019
SC No 3472 of 2019

CRAIG POPPLESTONE  Appellant
t/as CTQ MANAGEMENT SERVICES

v

PREMA LIFE PTY LIMITED  Respondent
ACN 102 803 725

BRISBANE

MONDAY, 25 NOVEMBER 2019

JUDGMENT

SOFRONOFF P:  This is an appeal against an order of Justice Dalton setting aside a statutory demand.  The appellant’s statutory demand was served upon the respondent three times.  The respondent replied in terms to set aside the copy of the demand that was served on the second of these occasions.  The appellant appeared before Justice Dalton in order to resist the making of the order.

The appellant’s solicitor, who appeared before Justice Dalton on the appellant’s behalf, candidly conceded to her Honour that, for certain reasons, the statutory demand that had been served by his client upon the respondent no longer had any practical or legal significance for his client.  He was there to oppose the application, he said, in order to obtain a costs order in favour of his client.  In aid of that purpose, the appellant argued that, for certain reasons, there was no jurisdiction under the Corporations Act to set aside the demand or the demands, as the case may be.

Justice Dalton set aside the demand that was served on the second occasion and ordered the appellant to pay the respondent’s costs.  The appellant has appealed against the order setting aside the statutory demand and, once again, argues that there was no jurisdiction to make the order.  And, again, the real purpose of the proceeding is to recover costs, both the costs below and the costs of the appeal.

In short, the appeal lacks utility.  The appellant has no interest in obtaining the substantive remedy.  He pursues the appeal for the purpose of obtaining an ancillary remedy, the overturning of the order for costs made by Justice Dalton.  That is not an appropriate way to achieve that end.  The Court of Appeal does not sit in order to hear appeals about substantive legal questions when those questions are hypothetical for the parties.

Disputes about orders to pay costs are not hypothetical, orders to pay costs have a real effect upon the person ordered to pay them; however, opposing an application and, when that opposition fails, appealing against the resulting order is not the proper way to challenge an order of that kind.  For one thing, an appeal against a costs order is subject to a requirement to obtain leave.  For another, opposition to the making of an order at first instance purely in order to obtain the benefit of an order for costs is liable to constitute an abuse of process.  I would not suggest for a moment that that is the position in this case, not having heard argument on the issue.  It is enough to say that the appeal, lacking utility, should be dismissed.

FRASER JA:  I agree.

PHILIPPIDES JA:  I also agree.

SOFRONOFF P:  I would order that the appellant pay the respondent’s costs on a standard basis.

FRASER JA:  I agree.

PHILIPPIDES JA:  I also agree.

SOFRONOFF P:  The order of the court is that the appeal is dismissed, and the appellant is ordered to pay the respondent’s costs on a standard basis.