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Team Dynamik Racing Pty Ltd v Longhurst Racing Pty Ltd


[2008] QCA 120




SC 10801 of 2005

Court of Appeal


Application to Strike Out



20 May 2008




20 May 2008


Holmes and Muir JJA and Mackenzie AJA


1. Appeal number 2736 of 2008 struck out

2. Appellants to pay the costs of the appeal and the strike-out application


APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where appeal brought against costs order without leave being sought under s 253 Supreme Court Act 1995 (Qld) – where appellants wished to abandon the appeal but defended the strike out order on the basis that the costs orders were money judgments and not did not involve an exercise of discretion giving rise to the requirement for leave under s 253 – whether orders made were costs orders or orders “in relation to” costs

Supreme Court Act 1995 (Qld), s 253

Emanuel Management Pty Ltd (in liq) v Foster’s Brewing Group [2004] 2 Qd R 11; [2003] QCA 516

Martinovic v The Chief Executive, Queensland Transport [2005] 1 Qd R 502; [2005] QCA 055


A J H Morris QC, with VG Brennan, for the applicant

A B Crowe SC, with J K Ratanatray, for the respondents


Hopgood Ganim for the applicant

Worcester & Co for the respondent

HOLMES JA:  This was an application to strike out the appeal on the basis that it was brought without the necessary leave under s 253 of the Supreme Court Act 1995 (Qld).  That section provides that no order made by any judge of the Supreme Court as to costs only which are, by law, left to the discretion of the judge, shall be subject to any appeal except by leave.

The order in question in this case made by the judge at first instance was that the costs of the plaintiff (now the applicant) against the first defendant be set off against the second defendants' costs against the plaintiff.

The respondent/appellants are in the odd position of defending the strike-out application, although they wish to abandon the appeal.  I think it is fair to say that that is really in order to defeat an application for the costs of the strike-out application. 

Mr Crowe, for the appellants, the respondents to this application, argued that the costs orders with which the judge at first instance was concerned, having been made earlier, were, in effect, when he was dealing with them, money judgments.  The issue was whether they could be set off, and that was a question of law, not just an exercise of discretion as to costs.  He referred to Martinovic v The Chief Executive, Queensland Transport [2005] 1 Qd R 502 for the proposition that the Court will look behind a costs order to see what it was based on.

He had a second string to his argument against any order for costs, and that was that his clients had sought to withdraw the appeal earlier.  We were referred to a chronology which commences effectively on the 23rd of April when the solicitors for the applicant here on the strike-out wrote to the appellants' solicitor pointing out that leave was needed under section 253.  On the 28th of April, not necessarily as a result of that letter, the appellants' solicitors advised that they were hereby withdrawing their appeal and would take the steps necessary to formally record the withdrawal of the appeal. 

That day, the solicitors for the applicant on the strike-out wrote back asking for a memorandum of consent for the dismissal of the appeal.  It does not seem that any action was very promptly taken on that, and over the next week or so the solicitors for the applicant threatened the strike-out application.

On the 6th of May the appellants' solicitors responded to the effect that it was well known to the applicant's solicitors that the appeal was not being proceeded with.  There was more correspondence about the provision of a memorandum.  A memorandum was provided on the 7th of May.  There was some issue about whether it was adequate.  A signed copy of a notice of agreement to the dismissal of the appeal was provided on the 8th of May.  There was some further argument about whether it would be signed by the applicant given that it did not provide for the appellants to pay the costs of the strike-out application.  In the end result, the application here proceeded.

In my view, the order here was, indeed, a costs order within the meaning of s 253.  It was not merely an order "in relation to" costs.  The set-off order was a practical exercise of the judge at first instance's general discretion as to costs, not requiring the resolution of any question of law.

Although Mr Crowe did not purport to rely on Martinovic for any greater effect than the proposition I have already identified, it is worth noting that that case is clearly distinguishable.  In paragraph 25 of Jerrard JA's judgment reference is made to Emanuel Management Pty Ltd (in liq) v Foster's Brewing Group [2004] 2 Qd R 11; and it is clear that the basis of the argument in that case as to why the costs order did not fall under s 253 was that it lay within the disciplinary jurisdiction of the Court.

Here, there was simply an exercise of the Court's general discretionary jurisdiction.  Strictly speaking, the applicant was entitled to proceed with the strike-out application in the absence of a notice of abandonment and here to argue it, given that the point was not conceded.

In my view, the appeal should be struck out with the appellants to pay the costs of the appeal and of the strike-out application on the ordinary basis.

MUIR JA:  I agree.  Mr Crowe's clients were given ample opportunity to ensure that the appeal which his clients had resolved to discontinue was in fact appropriately terminated.  The conduct of the other side is criticised as unduly aggressive.  The solicitors for that side may have been a little overly aggressive in their demands but they were under time pressures in relation to steps which needed to be taken in relation to the appeal.

Mr Crowe's clients were put on notice as to the stance which their opponents were adopting.  They chose to ignore that notice and must bear the consequences.

MACKENZIE AJA:  I need to add nothing to what has already been said by the presiding judge and Justice Muir.

I agree with the orders proposed.

HOLMES JA:  The appeal then, number 2736 of 2008, is struck out and the orders are that the appellants are to pay the costs of the appeal and of this application.


Editorial Notes

  • Published Case Name:

    Team Dynamik Racing Pty Ltd v Longhurst Racing Pty Ltd & Ors

  • Shortened Case Name:

    Team Dynamik Racing Pty Ltd v Longhurst Racing Pty Ltd

  • MNC:

    [2008] QCA 120

  • Court:


  • Judge(s):

    Holmes JA, Muir JA, Mackenzie AJA

  • Date:

    20 May 2008

Litigation History

No Litigation History

Appeal Status

No Status