Nguyen v Sensis Pty. Ltd.
[2016] QDC 330
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- Unreported Judgment
- Nguyen v Sensis Pty. Ltd.[2016] QDC 330
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Nguyen v Sensis Pty. Ltd.[2016] QDC 330
Nguyen v Sensis Pty. Ltd.[2016] QDC 330
DISTRICT COURT OF QUEENSLAND
CITATION: | Hong Minh Nguyen trading as Mobile PC Doctor v Sensis Pty Ltd [2016] QDC 330 |
PARTIES: | HONG MINH NGUYEN TRADING AS MOBILE PC DOCTOR (Appellant) v SENSIS PTY LTD ACN 007 423 912 (Respondent) |
FILE NO: | 1355/16 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Richlands |
DELIVERED ON: | 16 December 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard and determined on the papers |
JUDGE: | Moynihan QC DCJ |
ORDER: |
|
CATCHWORDS: | MAGISTRATES – APPEAL AND REVIEW – PRACTICE AND PROCEDURE – COSTS – where Magistrates Court proceedings dismissed for abuse of process – where findings made below without sufficient evidence – where the parties did not tender evidence Uniform Civil Procedure Rules 1999 (Qld), r 681 |
COUNSEL: | P G Jeffery for the Appellant F Y Lubett for the Respondent |
SOLICITORS: | Paul Clough (solicitor) for the Appellant Holman Webb Lawyers for the Respondent |
- [1]In the appeal of Hong Minh Nguyen trading as Mobile PC Doctor v Sensis Pty Ltd v Sensis Pty Ltd [2016] QDC 304, I ordered that the appeal be allowed and set aside the orders of Magistrate dismissing the appellant’s claim in the Magistrates Court and for costs.
- [2]I have read each of the party’s further written submission on the issue of costs.
- [3]The appellant contends that the respondent should pay the costs of the appeal and the application below.
- [4]Rule 681 of the Uniform Civil Procedure Rules 1999 provides that: “costs of a proceeding, including an application in a proceeding, are in the discretion of the court, but follow the event, unless the court orders otherwise.”
- [5]The primary error below was that the evidence in the case could not support the finding relied on to found the abuse of process. The parties did not challenge the statement by the magistrate that “I don’t think I need any affidavit material” and did not seek leave to file and read any affidavit material. The conduct of the parties below allowed the magistrate to make a finding without proper foundation, and caused a failure to account for material considerations.
- [6]Having regard to the way the application was conducted and the issue in the appeal, I am satisfied that it is fair that each party bear their own costs of the appeal and the application below. I so order.