Ultra Tune Australia Pty Ltd v Mackenzie Auto Repairs Pty Ltd
[2021] QCA 3
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- Unreported Judgment
- Ultra Tune Australia Pty Ltd v Mackenzie Auto Repairs Pty Ltd[2021] QCA 3
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Ultra Tune Australia Pty Ltd v Mackenzie Auto Repairs Pty Ltd[2021] QCA 3
Ultra Tune Australia Pty Ltd v Mackenzie Auto Repairs Pty Ltd[2021] QCA 3
SUPREME COURT OF QUEENSLAND
CITATION: | Ultra Tune Australia Pty Ltd v Mackenzie Auto Repairs Pty Ltd [2021] QCA 3 |
PARTIES: | ULTRA TUNE AUSTRALIA PTY LTD ACN 065 214 708 (appellant) v MACKENZIE AUTO REPAIRS PTY LTD ACN 123 938 698 (respondent) |
FILE NO/S: | Appeal No 7679 of 2020 SC No 10805 of 2017 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane – Unreported, 19 June 2020 (Wilson J) |
DELIVERED ON: | 22 January 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18 November 2020 |
JUDGES: | Fraser and McMurdo JJA and Williams J |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – PARTICULAR CASES – where proceedings between the appellant and respondent were settled pursuant to a deed of settlement, which provided that the respondent be paid its costs on an indemnity basis – where a costs statement was served on the appellant – where the appellant did not serve a notice of objection within time – where a default costs assessment was made, which was given effect by the order of the Registrar – where no application under r 740 UCPR was made by the appellant – where the appellant made an application to have the default costs assessment and order of the Registrar set aside – where the application was refused – whether the learned primary judge erred in refusing the application – whether the default costs assessment and order of the Registrar should be set aside Supreme Court of Queensland Act 1991 (Qld), s 63, s 64 Uniform Civil Procedure Rules 1999 (Qld), r 706, r 708, r 709, r 740 Amos v Wiltshire [2014] QCA 218, considered Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, considered Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24, cited |
COUNSEL: | L Stephens with N Hiscox for the appellant L Jurth for the respondent |
SOLICITORS: | T Troung, in-house solicitor for the appellant Saunders Downing Legal for the respondent |
- [1]FRASER JA: I agree with the reasons for judgment of Williams J and the orders proposed by her Honour.
- [2]McMURDO JA: I agree with Williams J.
- [3]WILLIAMS J: This is an appeal from an order dated 19 June 2020 dismissing an application to set aside a default costs assessment and the Registrar’s order dated 10 February 2020 giving effect to the assessment.
- [4]The appellant seeks orders that the order dismissing the application dated 19 June 2020 be set aside, the decision and certificate of the costs assessor dated 5 February 2020 be set aside and the order for costs of the Registrar dated 10 February 2020 be set aside. Further, the appellant seeks an order that the appointed costs assessor reassess the respondent’s costs statement taking the notice of objection into account.
Background
- [5]The respondent was one of the appellant’s franchisees between 2007 and 2017. The respondent commenced proceedings against the appellant alleging breaches of the franchise agreement, provisions of the Franchising Code of Conduct and the Australian Consumer Law. The matter was set down for trial in 2019 and, ultimately, the appellant agreed to compromise the proceedings on the terms set out in a deed of settlement dated 22 March 2019.[1]
- [6]By the terms of the deed of settlement, the appellant agreed to pay the respondent’s costs on a full indemnity basis consisting of costs of the proceedings, the assessment of costs, preparation of the deed of settlement and the costs of enforcing the deed of settlement.
- [7]Following the appellant breaching the deed of settlement by failing to pay the settlement sum on 21 May 2019, an application was made to the Supreme Court of Queensland to enforce the deed of settlement by obtaining judgment.[2]
- [8]On 3 June 2019, Applegarth J ordered by consent:
- (a)that judgment be given in favour of the respondent; and
- (b)the appellant pay the respondent’s costs of the proceeding as well as the application on the indemnity basis.[3]
- (a)
- [9]The deed of settlement and the order of Applegarth J dated 3 June 2019 provide the basis for the obligation of the appellant to pay the respondent’s costs on an indemnity basis.
- [10]The parties were unable to agree in relation to the amount of indemnity costs. The respondent’s solicitor served a costs statement on the appellant on 17 December 2019.
- [11]Pursuant to r 706 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), any notice of objection to any item in the costs statement was to be served within 21 days after service of the costs statement: being 7 January 2020.
- [12]No notice of objection was served on or before 7 January 2020. On 14 January 2020, the respondent filed an application to appoint a costs assessor pursuant to r 708 of the UCPR.
- [13]The costs assessor’s certificate dated 5 February 2020 assessed the costs in the amount of $260,203.23. The respondent filed the costs certificate on 6 February 2020 and, on 10 February 2020, the Deputy Registrar made the Registrar’s order that the costs be assessed in that amount.
- [14]On 12 February 2020, the Registrar’s order was served on the appellant.
- [15]The Registrar’s order refers to r 740 of the UCPR in the footer. The effect of r 740 is that the order is not enforceable until at least 14 days after it is made and the Court may stay enforcement pending review of the assessment on terms the Court considers just. No application was made by the appellant pursuant to r 740 of the UCPR.
- [16]Having received nothing from the appellant, the respondent commenced enforcement proceedings in the County Court of Victoria on 3 April 2020 and filed a summons for leave to issue a garnishee summons on 23 April 2020. The garnishee summons was served on both the appellant and its bank.
- [17]On 15 May 2020 the appellant filed a summons in the County Court of Victoria seeking to set aside the garnishee summons. On 20 May 2020 orders were made for a timetable for various steps to be taken.
- [18]On 19 May 2020 the appellant brought an application in the Supreme Court of Queensland seeking various orders, including to set aside the default assessment of the costs. The application was served on 22 May 2020 and the return date was 15 June 2020.
Application before the learned primary judge
- [19]The appellant’s application filed on 19 May 2020 (but dated 11 May 2020) was listed before the learned primary judge sitting in the applications list on 15 June 2020. The application was adjourned as the affidavit material filed in support of the application was “seriously insufficient” and the appellant was provided with an opportunity to file further affidavit material in support of the application.
- [20]The application came before the learned primary judge again on 19 June 2020. Further affidavit material had been provided by the appellant and further written submissions were also provided to the Court by both parties.
- [21]The application proceeded before the learned primary judge with her Honour working through the various issues and engaging with Mr Hiscox of Counsel, who appeared on behalf of the appellant at the second return date, and Counsel for the respondent in respect of the issues. Following a short adjournment for the appellant’s Counsel to consider the position, the following exchange occurred:
“MR HISCOX: Your Honour, on the basis of your direction and guidance earlier, I don’t see that the application can succeed in respect of what they are seeking, what he has been seeking, except that I would add that in having had the opportunity to have a quick look through the cost statement, and the assessment of Mr Campbell, it appears that Mr Campbell has conducted the assessment in error and has applied indemnity costs to items are after [sic] item 1569.”[4]
- [22]Further discussions ensued in relation to this alleged error and ultimately, Counsel on behalf of the appellant conceded that the terms of the deed of settlement providing for costs on an indemnity basis would apply in relation to costs of the assessment.[5] This concession followed an earlier concession that the objection in relation to Counsel’s fees could not be maintained.
- [23]In light of the interaction at the hearing on these issues and the position taken by Mr Hiscox on behalf of the appellant, the following further exchange occurred:
“HER HONOUR: So how should I deal with this matter then? I mean, I have been pointed to 709, setting aside the default judgement. Do you – what should I do today? Just dismiss your application? You have got no - - -
MR HISCOX: Your Honour, I think the short answer is yes.
HER HONOUR: Okay.”[6]
- [24]A further exchange occurred between the learned primary judge and both Counsel in relation to the issue of costs.
- [25]The following exchange then occurred:
“HER HONOUR: - - - I think Mr Hiscox has conceded that the application should be dismissed. Is that the case?
MR HISCOX: Yes, your Honour.
HER HONOUR: So do I need to give reasons about - - -
MR JURTH: No.
HER HONOUR: In terms of the application being dismissed? Mr Hiscox?
MR HISCOX: No. No, your Honour.
HER HONOUR: Then the question then to be determined – well, maybe – then the only question then to be determined is - - -
MR JURTH: Is just cost.
HER HONOUR: - - - is cost. Is that the only thing, Mr Hiscox?
MR HISCOX: Yes, your Honour.
HER HONOUR: Okay, and your submission is still the same?
MR HISCOX: Having just heard my friend, I think he has highlighted several points which I would have to concede may get him over the line in respect of indemnity costs.
HER HONOUR: So you have got no objection if I make an order for indemnity costs?
MR HISCOX: No. I have got nothing that I can add to that, your Honour.
HER HONOUR: Okay. Well, on [sic] that situation, then the application is dismissed, and I will make an order for indemnity costs on the – into the favour of the respondent.”[7]
- [26]The matter was adjourned for the parties to prepare a draft form of order. Later the same day, the following exchange occurred:
“MR JURTH: May I hand up a form of draft order that I have prepared and shown to my learned friend, consistently with - - -
HER HONOUR: Mr Hiscox, have you seen this?
MR HISCOX: I have, your Honour. I have got a copy.
HER HONOUR: Yes. Do you – Mr Hone, I will have to get Mr Hone on.
MR HISCOX: I don’t know if he is still waiting there, your Honour.
HER HONOUR: Okay.
MR HISCOX: I have been texting him and talking with him. Yes.
HER HONOUR: Okay. But you have got instructions to proceed this way?
MR HISCOX: Yes, your Honour.
HER HONOUR: Okay. The order of the Court is that the application is dismissed. The defendant will pay the plaintiff’s costs of the application to be agreed or assessed by an indemnity basis. No objection, Mr Hiscox?
MR HISCOX: No objection, your Honour.
HER HONOUR: And you have got instructions to do that?
MR HISCOX: Yes, your Honour.
HER HONOUR: Okay. I will sign the order.”[8]
- [27]A number of issues arise out of the way in which the orders were made at the hearing on 19 June 2020, which may impact on whether the appeal is properly constituted or whether leave to appeal is required.
Leave to appeal required if orders made by consent
- [28]The orders were not expressly made by consent. However, it appears from the exchanges that they were made at least with the knowledge and agreement of Counsel appearing on behalf of the appellant.
- [29]If orders dated 19 June 2020 are consent orders then pursuant to s 63 of the Supreme Court of Queensland Act 1991 (Qld), an appeal lies only by leave of the judge who made the order or if that judge is not available, another judge of the Court in the Trial Division. No leave has been sought or obtained.
- [30]However, given the matters discussed below it is not necessary to conclusively decide whether the orders were made by consent and whether leave was required for the appeal to be properly constituted.
Leave to appeal required if appeal only in relation to costs
- [31]Further, s 64 of the Supreme Court of Queensland Act 1991 (Qld) provides that an appeal “only in relation to costs” lies to the Court of Appeal only by leave of the judge who made the order or if that judge is not available, another judge of the Court in the Trial Division.
- [32]It may be arguable that this appeal is only in relation to costs, in that it only relates to the default assessment of costs and the Registrar’s order in relation to costs. No leave has been sought or obtained.
- [33]However, the approach of Muir JA (with whom North J and Flanagan J agreed) in Amos v Wiltshire[9] is more consistent with this being an appeal in relation to costs, rather than “only in relation to costs”. It also involves the exercise of her Honour’s discretion in relation to the relief sought in the application. While it concerns costs, it does not concern the exercise of the discretion to award costs.
- [34]In Amos v Wiltshire, the applicant appealed against costs orders on the basis that the learned primary judge failed to recuse herself. The Court of Appeal did not refuse the appeal because leave to appeal had not been granted by the learned primary judge. In relation to s 64, Muir JA (North and Flanagan JJ agreeing) stated:
“[20] Counsel for the respondent argued that the appeal was not properly constituted as it was an appeal “only in relation to costs” and, as such, the appeal lay only by leave of a judge.
…
[22] Referring to s 253 of the Supreme Court Act 1995 (Qld) (the 1995 Act), the predecessor of s 64, Keane JA observed in ASIC v Jorgensen:
‘The evident purpose of s 253 of the Supreme Court Act is to impose a filter upon appeals about the exercise of the discretion to award costs where the disposition of the costs is left by law in the discretion of the judge. The evident intent of the provision is to ensure that the primary judge’s balancing of discretionary considerations should not be reconsidered on appeal save in cases where the primary judge has first addressed the question whether there is good reason to allow his or her exercise of the discretion to be reviewed.’
[23] In Lessbrook Pty Ltd (in liq) v Whap; Stephen; Bowie; Kepa & Kepa, I observed, with the concurrence of Gotterson JA and Daubney J, that there was no reason to suppose that the purpose of s 64 was in any way different from the purpose of s 253 of the 1995 Act as explained by Keane JA in Jorgensen.
[24] The words ‘in relation to’ have been described as wide words. There can be little doubt that the subject appeal is an appeal ‘in relation to costs’. It is doubtful, however, that it is an appeal ‘only in relation to costs’. That is because of the nature of the bias, actual or apprehended, and its impact on proceedings.” (Footnotes omitted)
- [35]However, given the matters discussed below it is not necessary to conclusively decide whether s 64 applies in these circumstances and whether leave was required for the appeal to be properly constituted.
No reasons for decision
- [36]In the light of the exchange with Counsel on behalf of the parties, her Honour did not provide reasons. There is no ground of appeal which raises the lack of reasons. However, in the appellant’s reply submissions dated 7 October 2020, reference is made to the learned primary judge’s failure to give reasons for her decision.
- [37]In its reply submissions the appellant refers to several authorities and a submission is made that a failure to provide reasons where they are required is an error of law and is also a jurisdictional error. Reference is made to the decisions in Fleming v The Queen[10] and Wainohu v New South Wales[11] in support of this proposition.
- [38]The appellant ultimately submits as follows:
“As Her Honour has not given any reasons for her decision, the Court of Appeal cannot tell what consideration was given by the Judge in the matter. The Court of Appeal should allow the appeal, set aside the orders and remit the matter to the Chambers or Trial division of the Supreme Court.”
- [39]In these circumstances, it is necessary to consider, at least to some degree, the issue of whether the failure to give reasons results in the need to set aside the orders.
- [40]The duty of judges to give reasons is well-established.[12] It requires that judges provide reasons for final decisions and important interlocutory proceedings.[13] However, the duty is subject to some qualification and, as such, does not extend to every decision of the court, such as minor interlocutory matters.[14]
- [41]The duty is not subject to qualification merely by the fact that parties have not specifically requested reasons from the court.[15] However, where a judge has asked the parties whether reasons for a decision are required and the parties decline the offer, it has been suggested that such a context would be a factor in favour of qualifying the judge’s duty to give reasons.[16]
- [42]The particular subject matter of the decision here, the extensive interaction between the learned primary judge and Counsel for both parties on the issues and the fact that both parties confirmed that reasons were not required in response to her Honour’s question, are all factors in support of the position that the failure to give reasons in the current circumstances does not amount to an error in law justifying the setting aside of the orders.
Grounds of Appeal
- [43]The appellant raises several grounds of appeal including the following:
- (a)The appellant has suffered a substantial injustice by being required to pay an amount for costs which did not take into account the items objected to in the Notice of Objection.[17]
- (b)Failure to give proper weight to the evidence.
- (c)An error of law in finding that r 740 of the UCPR excluded the appellant applying to set aside a default costs assessment made pursuant to r 709 of the UCPR.
- (d)Failure to give sufficient regard to the evidence explaining the delay in filing the r 709 application and notice of objection.
- (e)Failure to give proper consideration or little weight to:
- The conduct of the respondent in delivering the costs statement to the appellant just prior to the Christmas and New Year break.
- The respondent unreasonably closing his business from 20 December 2019 to 14 January 2020 denying the appellant an opportunity to request an extension of time to file the notice of objection.
- The size of the matter (costs statement 180 pages and 1,602 items).
- The appellant’s efforts in preparing and filing a notice of objection after the expiry of the 21 day period.
- (f)Unreasonable exercise of a discretionary power.
- (a)
- [44]The appellant’s submissions do not appear to grapple with the alleged errors identified in the notice of appeal. Rather the submissions appear to focus on the merits, including the arguments advanced below, some of which were expressly conceded or abandoned. The respondent is critical of this approach and submits that it is done “in the hope that this Court will exercise the relevant discretion de novo.”
- [45]In response the respondent’s submissions include the following:
- (a)Given the appellant’s concessions at the hearing on 19 June 2020 the orders were in effect made by consent and therefore leave to appeal is required.
- (b)The orders were made in the exercise of a judicial discretion. The ability to review the decision is only in accordance with the principles identified in House v The King.[18] The respondent submits that given the appellant’s concessions it cannot demonstrate that the discretion has miscarried.
- (c)The orders concerned a matter of practice and procedure, being the process of the assessment of costs in relation to the earlier order for indemnity costs. The respondent submits that there is no error of principle and also there is no resulting injustice.
- (a)
- [46]Overall, the respondent submits that there was no error in the resolution of the application by the learned primary judge: there remains no satisfactory explanation for the appellant’s failures and delays.
Consideration
- [47]In respect of appeals concerning an exercise of judicial discretion, the principles in House v The King can be summarised as follows:
- (a)That this Court would have taken a different course to the primary judge is not sufficient.[19]
- (b)It is necessary to show that the discretion in some respect miscarried. That is, the primary judge erred by acting upon a wrong principle, errors of fact, took into account irrelevant considerations or failed to take into account relevant considerations.[20]
- (c)Where it is not apparent how the primary judge reached the result, the facts must demonstrate that the order is “unreasonable and plainly unjust” or constitutes a “substantial wrong”.[21]
- (d)A “severe” outcome is not sufficient to be one that is unreasonable, plainly unjust or substantially wrong.[22]
- (a)
- [48]It was plainly open to the learned primary judge to dismiss the application on the basis that:
- (a)Time runs over the Christmas/New Year period under the UCPR.
- (b)The costs statement was served on the afternoon of 17 December 2019. The covering email clearly states that the offices of the solicitors for the respondent were closed from 12 noon on Friday 20 December 2019 until 9am on Monday 13 January 2020. It was not unreasonable or unusual for solicitors’ offices to be closed in this period. Clear and express notice was given of the closure.
- (c)Under r 709 of the UCPR any application to set aside a default assessment needs to be supported by an affidavit explaining both the party’s failure to file a notice of objection to the cost statement and any delay. This was not done. Further time was provided to remedy this and the further affidavit material also failed to satisfactorily address both these issues.
- (d)The affidavit material before the learned primary judge was deficient in a number of respects relating to each relevant period of delay.
- (a)
- [49]There were several periods of delay that needed to be addressed by the appellant:
- (a)The 21 day period between 17 December 2019 and 7 January 2020 and the failure to file a notice of objection.
- (b)The 14 day period following 10 February 2020 and the failure to apply for a stay of the Registrar’s order dated 10 February 2020 pending review of the assessment pursuant to r 740(3) of the UCPR.
- (c)The approximately three month period from 17 December 2019 to mid-March 2020 during which Mr Truong failed to obtain instructions from the director of the appellant to proceed to prepare a notice of objection.
- (d)The period up to the initial listing of the application on 15 June 2020, including following commencement of the proceedings in the County Court of Victoria and prior to the listing of the application before the learned primary judge.
- (a)
- [50]The affidavit material failed to provide a satisfactory explanation for the delays, including for example that:
- (a)The affidavit material did not satisfactorily address why no steps were taken by the appellant in the initial period from the afternoon of 17 December to the morning of 20 December (even assuming that the work Christmas function, workload and holiday leave was a sufficient explanation for the failure to take the necessary steps in the balance of that period). This was prior to closure of the offices of the solicitors for the respondent.
- (b)The affidavit material provides the explanation that Mr Truong was “not aware” of and was “unfamiliar” with r 740(3) of the UCPR.[23] This really provides no explanation at all. The Registrar’s order expressly refers to r 740 of the UCPR. The UCPR is publicly available and easily accessible on the Internet. Further, ignorance of the costs regime in Queensland should have prompted the appellant to take proactive steps to protect its interests and not to delay seeking appropriate advice.
- (c)While initial contact was made with DGT Costs Lawyers on 14 January, they were not retained until 6 April 2020 to prepare a notice of objection. This is despite numerous follow up emails from DGT Costs Lawyers in the intervening period.[24] The notice of objection was prepared by DGT Costs Lawyers by 16 April 2020.[25] An unsigned, undated version was only provided to the respondent on 22 May 2020 as part of the affidavit material for the application.[26]
- (d)Following being served on 12 February 2020 with the Registrar’s order of 10 February 2020 the appellants did not take any substantive steps. Again, it was indicated in emails that the appellant was seeking further time.[27]
- (e)The appellant again indicated by email on 20 April 2020 that they would file an application to set aside the costs order that week or early the next week. No documents were served in that period.[28]
- (f)Despite the appellant bringing an application in the County Court of Victoria on 15 May 2020 and the timetable being set on 20 May 2020, the appellant did not act expeditiously in this Court. The application dated 11 May 2020 was not filed until 19 May 2020. A return date was obtained on 15 June 2020 – nearly a month later. That first return date was adjourned due to the deficiencies in the material. There is no explanation for this further delay and failure to act expeditiously.
- (a)
- [51]Mr Hiscox of Counsel appeared for the appellants at the hearing on 19 June 2020. Mr Hiscox is experienced in respect of legal costs and is an Approved Costs Assessor under the UCPR. Mr Hiscox made a number of concessions in respect of the substantive issues identified in the cost statement and the notice of objection before the learned primary judge. Her Honour acted reasonably in acting on the basis of the concessions made.
- [52]As evidenced by the transcript of the hearing on 15 and 19 June 2020, the learned primary judge’s exercise of discretion in making the orders was not unreasonable. Further, no error of law or fact in her Honour’s approach has been established by the appellant. Nor has the appellant established any failure to take into account a relevant consideration or taking into account an irrelevant consideration. No miscarriage of the exercise of judicial discretion has been established.
- [53]In these circumstances, it is not necessary to further consider whether leave is required under sections 63 or 64 of the Supreme Court of Queensland Act 1991 (Qld) as the substantive appeal must fail.
- [54]The appeal should be dismissed.
- [55]Submissions were made at the hearing of the appeal in relation to costs. The respondent relies on clause 3.2 of the deed of settlement as the basis upon which costs should be awarded on an indemnity basis.
- [56]Given the express terms of the deed of settlement and the fact that the respondent has had to incur costs as a result of the delays and failures by the appellant to comply with processes under the UCPR, an order that the appellant pay the respondent’s costs of the appeal on an indemnity basis is appropriate in the circumstances.
Orders
- [57]I would therefore make the following orders:
- The appeal be dismissed.
- The appellant pay the respondent’s costs of the appeal on the indemnity basis.
Footnotes
[1]Exhibit “GAD1” to the affidavit of G Downing sworn 13 January 2020. AB page 52.
[2]See affidavit of G Downing sworn 10 June 2020 at [5]-[6]. AB page 360.
[3]Exhibit “GAD2” to the affidavit of G Downing sworn 13 January 2020 (consent order dated 3 June 2019). AB page 62.
[4]AB page 502 line 41 – 46.
[5]AB page 518 line 15 – 18.
[6]AB page 518 line 20 – 26.
[7]AB Page 522 line 26 – AB page 523 line 14.
[8]AB page 524 line 28 – AB page 525 line 11.
[9] [2014] QCA 218.
[10](1998) 197 CLR 250.
[11](2011) 243 CLR 181.
[12]AK v Western Australia (2008) 232 CLR 438, 470 (Heydon J).
[13]Wainohu v New South Wales (2011) 243 CLR 181, 213 (French CJ and Kiefel J).
[14]Wainohu v New South Wales (2011) 243 CLR 181, 215 (French CJ and Kiefel J).
[15]R v Kay; Ex parte Attorney-General [2017] 2 Qd R 522.
[16]Crystal Dawn P/L & Anor v Redruth P/L [1998] QCA 373, [17] (Muir J); R v Kay; Ex parte Attorney-General [2017] 2 Qd R 522, 534 (McMurdo JA).
[17]The Notice of Appeal identifies that the amount of the “difference” is over $100,000. This is at odds with the position that was accepted at the hearing of the application on 19 June 2020 where the amount was considerably lower given the concessions made by Mr Hiscox for the appellant. Towards the end of the hearing on 19 June it appears that only $24,588 was in issue [AB page 517 L 24-25]. Two of the items identified at [37] of the appellant’s submissions on the appeal were expressly conceded and the third item is $15,670.59, which may be the only amount in issue but it is not clear.
[18](1936) 55 CLR 499.
[19](1936) 55 CLR 499, 504-505 (Dixon, Evatt, McTiernann JJ).
[20](1936) 55 CLR 499, 505 (Dixon, Evatt, McTiernann JJ).
[21]Ibid.
[22](1936) 55 CLR 499, 507 (Dixon, Evatt, McTiernann JJ).
[23]Affidavit of T Truong sworn 17 June 2020 at [21] and [33]. AB pages 407 and 409.
[24]Affidavit of T Truong sworn 17 June 2020 at [12], [14] and [27]. AB pages 406 and 408. See also exhibits TT-2; TT-4 to TT-8. AB pages 415 to 434.
[25]Affidavit of T Truong sworn 17 June 2020, exhibit TT-10. AB page 438.
[26]Affidavit of G Downing sworn 10 June 2020 at [27]. AB page 363.
[27]Affidavit of G Downing sworn 10 June 2020 at [18] to [20]. AB page 362.
[28]Affidavit of G Downing sworn 10 June 2020 at [22]. AB page 362.