Virgtel Ltd v Zabusky - [2009] QCA 92

SUPREME COURT OF QUEENSLAND

CITATION:

Virgtel Ltd & Anor v Zabusky & Ors [2009] QCA 92

PARTIES:

VIRGTEL LIMITED
(first applicant/applicant)
VIRGTEL GLOBAL NETWORKS NV
(second applicant/applicant)
v
HARVEY ZABUSKY
(first respondent/respondent)
AMALIA ZABUSKY
(second respondent/respondent)
EREZ ZABUSKY
(third respondent/respondent)
COMMSLOGIC PTY LTD
ACN 109 057 543
(fourth respondent/respondent)
SOFTQUEST SOLUTIONS PTY LTD
ACN 057 679 599
(fifth respondent/respondent)
VIRGIN TECHNOLOGIES LIMITED
(sixth respondent/applicant)

FILE NO/S:

Appeal No 13518 of 2008
SC No 6547 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application to Strike Out

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

9 April 2009

JUDGES:

Keane and Fraser JJA and Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application dismissed

2. Applicant to pay the respondents' costs of the application on the standard basis

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – JUDGMENT AND ORDERS – RELIEF AGAINST – where appellant appeals against refusal by primary judge to order stay of execution with respect to costs orders obtained against it – where applicant contends order refusing stay of execution with respect to costs orders constitute orders "as to costs only" under s 253 of Supreme Court Act 1995 (Qld) – where applicant contends that appeal incompetent for want of leave of primary judge – whether appeal relates to costs only

Supreme Court Act 1995 (Qld), s 253
Uniform Civil Procedure Rules 1999 (Qld), r 740, r 800

ASIC v Jorgensen & Ors [2009] QCA 20, cited
Bankamerica Finance Ltd v Nock [1988] AC 1002, cited
Emanuel Management Pty Ltd (in liq) v Foster's Brewing Group Ltd [2004] 2 Qd R 11; [2003] QCA 516, cited
L Joseph Pty Ltd v Gray (1939) 56 WN (NSW) 190, cited
Maniotis v Valimi Pty Ltd (2002) 4 VR 386; [2002] VSCA 91, cited
Re Golden Casket Art Union Office [1995] 2 Qd R 346; [1994] QCA 480, cited
Scherer v Counting Instruments Ltd (Note) [1986] 1 WLR 615, cited
Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2008] QSC 316, cited

COUNSEL:

G C Newton SC, with M S Trim, for the applicant
D R Cooper SC for the respondents

SOLICITORS:

James Conomos Lawyers for the applicant
Tucker & Cowen for the respondents

KEANE JA: Virgtel Limited and Virgtel Global Networks NV ("Virgtel"), are the respondents to an appeal by Harvey Zabusky and others ("Zabusky") against the decision of the learned primary judge, Daubney J, made on 5 December 2008.

The decision below

Daubney J refused to stay several orders for costs made against Zabusky by de Jersey CJ and McMurdo J in proceedings by Virgtel against Zabusky. The principal proceedings arise out of the alleged wrongful diversion to Zabusky of payments which should have been made to Virgtel. Zabusky had sought a stay of the orders for costs until the determination of…

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: [2009] QCA 92
Decision Date: 17 April 2009

CaseChat Overview and Summary

The case of Virgtel Ltd v Zabusky involved the appellant, Virgtel Ltd, appealing against the refusal by the primary judge to order a stay of execution in relation to costs orders that had been obtained against it. The dispute was heard in the Queensland Supreme Court. The primary judge had refused to stay the execution of the costs orders, which the appellant sought to appeal. The primary issue before the court was whether the order refusing the stay of execution constituted an order "as to costs only" under section 253 of the Supreme Court Act 1995 (Qld). The appellant argued that the appeal was incompetent for want of leave from the primary judge because the appeal related solely to costs.

The court found that the appeal was indeed incompetent for want of leave, as it pertained solely to the issue of costs. The court reasoned that an appeal from an order refusing a stay of execution of costs orders is an appeal from a cost order and, as such, requires leave from the primary judge. Since the appellant had not obtained the necessary leave, the court held that the appeal was incompetent. The court dismissed the application and ordered that the appellant pay the respondents' costs of the application on the standard basis.

Orders

Orders of the court

1. Application dismissed

2. Applicant to pay the respondents' costs of the application on the standard basis

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:	Virgtel Ltd & Anor v Zabusky & Ors [2009] QCA 92
PARTIES:	VIRGTEL LIMITED (first applicant/applicant) VIRGTEL GLOBAL NETWORKS NV (second applicant/applicant) v HARVEY ZABUSKY (first respondent/respondent) AMALIA ZABUSKY (second respondent/respondent) EREZ ZABUSKY (third respondent/respondent) COMMSLOGIC PTY LTD ACN 109 057 543 (fourth respondent/respondent) SOFTQUEST SOLUTIONS PTY LTD ACN 057 679 599 (fifth respondent/respondent) VIRGIN TECHNOLOGIES LIMITED (sixth respondent/applicant)
FILE NO/S:	Appeal No 13518 of 2008 SC No 6547 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Application to Strike Out
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 April 2009
DELIVERED AT:	Brisbane
HEARING DATE:	9 April 2009
JUDGES:	Keane and Fraser JJA and Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application dismissed 2. Applicant to pay the respondents' costs of the application on the standard basis
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – JUDGMENT AND ORDERS – RELIEF AGAINST – where appellant appeals against refusal by primary judge to order stay of execution with respect to costs orders obtained against it – where applicant contends order refusing stay of execution with respect to costs orders constitute orders "as to costs only" under s 253 of Supreme Court Act 1995 (Qld) – where applicant contends that appeal incompetent for want of leave of primary judge – whether appeal relates to costs only Supreme Court Act 1995 (Qld), s 253 Uniform Civil Procedure Rules 1999 (Qld), r 740, r 800 ASIC v Jorgensen & Ors [2009] QCA 20, cited Bankamerica Finance Ltd v Nock [1988] AC 1002, cited Emanuel Management Pty Ltd (in liq) v Foster's Brewing Group Ltd [2004] 2 Qd R 11; [2003] QCA 516, cited L Joseph Pty Ltd v Gray (1939) 56 WN (NSW) 190, cited Maniotis v Valimi Pty Ltd (2002) 4 VR 386; [2002] VSCA 91, cited Re Golden Casket Art Union Office [1995] 2 Qd R 346; [1994] QCA 480, cited Scherer v Counting Instruments Ltd (Note) [1986] 1 WLR 615, cited Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2008] QSC 316, cited
COUNSEL:	G C Newton SC, with M S Trim, for the applicant D R Cooper SC for the respondents
SOLICITORS:	James Conomos Lawyers for the applicant Tucker & Cowen for the respondents