SUPREME COURT OF QUEENSLAND
CITATION:
Smits v Cugola & Ors [2022] QCA 262
PARTIES:
LEONARDUS GERARDUS SMITS
(applicant)
v
DAVID WILLIAM CUGOLA
(first respondent)
SUZANNE MARGARET CUGOLA
(second respondent)
ANDRE WERNER DE WIT
(third respondent)
KAREN JOHANNA ELIZABETH DE WIT
(fourth respondent)FILE NO/S:
Appeal No 8265 of 2021
SC No 9469 of 2020DIVISION:
Court of Appeal
PROCEEDING:
Application for Extension of Time
Application for Reopening (Civil)ORIGINATING COURT:
Supreme Court at Brisbane – [2021] QSC 161; [2021] QSC 164 (Jackson J)
DELIVERED ON:
16 December 2022
DELIVERED AT:
Brisbane
HEARING DATES:
8 November 2021
3 March 2022JUDGES:
Mullins and Bond JJA and Henry J
ORDERS:
1. As to the application filed 17 January 2022:
a. Leave granted to amend the application by the deletion of proposed orders 2, 4 and 5.
b. The application as amended is refused.
c. The applicant must pay the respondents’ costs of the application, to be assessed.
2. As to the application filed 20 July 2021:
a. The application is refused.
b. The applicant must pay the respondents’ costs of the application, to be assessed.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – where the applicant commenced proceedings in the Trial Division against the four respondents in this Court for various claims over a property development project – where the primary judge dismissed the applicant’s applications for summary judgment against the respondents – where the primary judge ordered the removal of caveats the applicant had lodged over the respondents’ homes – where the primary judge ordered summary judgment in favour of the third and fourth respondents – where the primary judge ordered summary judgment in favour of the second respondent – where the primary judge ordered summary judgment in favour of the first respondent in some respects but allowed other claims to continue to trial – where the applicant brought an application for extension of time to appeal and appeal against the orders made by the primary judge – whether the applicant had a right of subrogation against any of the respondents – whether a deed of settlement was operative and effective – whether the applicant’s claims for equitable contribution were barred by operation of the Limitation of Actions Act 1974 (Qld) – whether the applicant had an arguable estoppel case based on the pleadings – whether the applicant had arguable conspiracy to injure, fraud and unconscionable conduct cases based on the pleadings – whether the applicant should be granted an extension of time to appeal the orders made by the primary judge
PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – GENERALLY – where oral argument was heard on the applicant’s application for extension of time to appeal and appeal – where judgment was reserved – where the applicant applied to reopen the proceedings pursuant to the Uniform Civil Procedure Rules 1999 (Qld) – where the applicant sought leave to reopen the hearing of…
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- AGLC
- Smits v Cugola [2022] QCA 262
- Case
- [2022] QCA 262
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining several legal issues. These included whether the applicant had a right of subrogation against any of the respondents, the enforceability of a deed of settlement, the applicability of the Limitation of Actions Act 1974 (Qld) to bar the applicant's claims for equitable contribution, and whether the applicant's estoppel, conspiracy to injure, fraud, and unconscionable conduct claims were arguable based on the pleadings. Additionally, the court needed to decide whether the applicant should be granted an extension of time to appeal the primary judge's orders.
The court found that the applicant's application to amend the application by deleting certain proposed orders was granted, but the amended application was refused. The applicant's application to reopen the appeal proceedings was also dismissed, as there was no merit in the application. The court concluded that the application for an extension of time to appeal and the appeal itself were without merit. Consequently, the applicant was ordered to pay the respondents' costs of both applications, to be assessed.
The final orders included the refusal of the amended application, the refusal of the application for an extension of time to appeal, and the direction for the applicant to pay the respondents' costs of both applications. The court's decision underscored the importance of substantiating claims with sufficient legal and factual bases and the stringent requirements for extensions of time and reopening of appeals.
Orders
Orders of the court
1. As to the application filed 17 January 2022:
a. Leave granted to amend the application by the deletion of proposed orders 2, 4 and 5.
b. The application as amended is refused.
c. The applicant must pay the respondents’ costs of the application, to be assessed.
2. As to the application filed 20 July 2021:
a. The application is refused.
b. The applicant must pay the respondents’ costs of the application, to be assessed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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