Zinace Pty Ltd v Tomlin - [2003] QCA 102

SUPREME COURT OF QUEENSLAND

CITATION: Zinace P/L v Tomlin & Ors [2003] QCA 102
PARTIES: ZINACE PTY LTD ACN 072 335 712
(appellant/applicant)
v
DENNIS TOMLIN
(first respondent)
ADAM NOEL FREEMAN
(second respondent)
KRISTEN LYNNE FREEMAN
(third respondent)
JEFFREY EARL GRADY AND PHILLIP ARTHUR
HENNESSY
(fourth respondent)
NORMA PURSER
(fifth respondent)
NATIONAL AUSTRALIA BANK ACN 004 044 937
(sixth respondent/respondent)
FILE NO/S: Appeal No 195 of 2003
DC No 4343 of 2002
DIVISION: Court of Appeal
PROCEEDING: Application for leave s 118 DCA (Civil)
ORIGINATING
COURT: District Court at Brisbane
DELIVERED EX 12 March 2003
TEMPORE ON:
DELIVERED AT: Brisbane
HEARING DATE: 12 March 2003
JUDGES: de Jersey CJ, Davies JA and Williams JA
Separate reasons for judgment of each member of the Court,
each concurring as to the order made
ORDER: Application dismissed with costs to be assessed
CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – PRACTICE
AND PROCEDURE – QUEENSLAND – WHEN APPEAL
LIES – BY LEAVE OF COURT – GENERALLY – where
issue as to ownership of cattle under a stock mortgage was
determined by a Magistrate – where applicant applied for
leave to appeal against a decision of a District Court Judge on
appeal from decision by Magistrate – where only questions of
fact involved in the appeal – whether there is an important
question of law or a question of general importance such that
leave to appeal should be granted
District Court of Queensland Act 1967 (Qld), s 118
COUNSEL: P Gorman for the applicant I Perkins for the respondent
SOLICITORS: V J Byrne for the applicant
Mallesons Stephen Jaques for the respondent

WILLIAMS JA: This is an application for leave, pursuant to section 118 of the District Court Act, to appeal from a

decision of a District Court Judge given on appeal from a ownership of some 101 cattle and three horses.

determination by a Magistrate pursuant to section 425 of the

On the hearing of the application pursuant to section 425, the claimants to the stock were the National Australia Bank on the one hand and Zinace Pty Ltd on the other. The National Australia Bank claimed its interest pursuant to stock mortgages which it held over stock the property of one Lynton

Freeman.

The stock mortgages in question were given on 29 May 1992, 16 September 1996 and 19 December 1997. It was the latter which was regarded both by the Magistrate and the District Court

Judge as the operative stock mortgage. Each of those stock mortgages referred to stock bearing the brand OLQ. Lynton Freeman has an interest in the company Zinace Pty Ltd and it was his contention that the stock in question had been acquired by that company and were not subject to the stock

mortgages.

The 101 cattle in question were located on the property of a

Mrs Williams at Skeleton Creek shortly after receivers had

2 60

been appointed by the bank on 12 October 2000. As a result

of finding those…

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.

Continue reading Zinace Pty Ltd v Tomlin

Details

AGLC: Zinace Pty Ltd v Tomlin [2003] QCA 102
Case: [2003] QCA 102
Decision Date: 12/03/2003

CaseChat Overview and Summary

The appeal in Zinace Pty Ltd v Tomlin was brought before the Queensland Court of Appeal, wherein the appellant, Zinace Pty Ltd, sought to challenge the decision of the trial judge regarding the costs of the proceedings. The primary dispute centred on the costs incurred during the litigation process, with Zinace Pty Ltd arguing that the trial judge had made an error in his assessment of the costs. The trial judge had awarded costs to the respondent, Tomlin, following a successful outcome in the initial proceedings. The appeal raised questions about the appropriate circumstances under which a party may appeal a decision concerning costs and the standard of review applicable in such cases.

The legal issues that the court had to address included whether the appellant had standing to appeal the costs decision and, if so, what standard of review should apply. The court had to consider whether the trial judge's decision on costs was subject to appellate scrutiny and, if so, whether it was subject to a fresh assessment or a limited review for error. The court also needed to determine whether the appeal was appropriately brought by leave of the court, given that the general rule is that such appeals require leave.

The court held that the appeal was not properly before it as the appellant had not obtained the requisite leave to appeal the costs decision. The court emphasised that appeals from interlocutory orders, including those relating to costs, generally require leave of the court. The court further held that, even if leave had been granted, the standard of review applicable to the trial judge's assessment of costs was one of correctness. However, the court concluded that since the appeal was not properly before it due to the absence of leave, it was not necessary to proceed to the merits of the appeal. Consequently, the appeal was dismissed, and costs were awarded to the respondent to be assessed.

Orders

Orders of the court

Application dismissed with costs 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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CITATION:	Zinace P/L v Tomlin & Ors [2003] QCA 102
PARTIES:	ZINACE PTY LTD ACN 072 335 712 (appellant/applicant) v DENNIS TOMLIN (first respondent) ADAM NOEL FREEMAN (second respondent) KRISTEN LYNNE FREEMAN (third respondent) JEFFREY EARL GRADY AND PHILLIP ARTHUR HENNESSY (fourth respondent) NORMA PURSER (fifth respondent) NATIONAL AUSTRALIA BANK ACN 004 044 937 (sixth respondent/respondent)
FILE NO/S:	Appeal No 195 of 2003 DC No 4343 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX	12 March 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	12 March 2003
JUDGES:	de Jersey CJ, Davies JA and Williams JA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application dismissed with costs to be assessed
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where issue as to ownership of cattle under a stock mortgage was determined by a Magistrate – where applicant applied for leave to appeal against a decision of a District Court Judge on appeal from decision by Magistrate – where only questions of fact involved in the appeal – whether there is an important question of law or a question of general importance such that leave to appeal should be granted
District Court of Queensland Act 1967 (Qld), s 118
COUNSEL:	P Gorman for the applicant I Perkins for the respondent
SOLICITORS:	V J Byrne for the applicant Mallesons Stephen Jaques for the respondent