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  4. LA Assets AU Pty Ltd v Meiklejohns Accountants (Qld) Pty Ltd - [2018] QDC 76

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LA Assets AU Pty Ltd v Meiklejohns Accountants (Qld) Pty Ltd[2018] QDC 76

LA Assets AU Pty Ltd v Meiklejohns Accountants (Qld) Pty Ltd[2018] QDC 76

DISTRICT COURT OF QUEENSLAND

CITATION:

LA Assets AU Pty Ltd ATF The Property Assets Aust-NZ Unit Trust (ACN 152 862 907) & Ors v Meiklejohns Accountants (Qld) Pty Ltd (ACN 105 135 082) & Anor [2018] QDC 76

PARTIES:

LA ASSETS AU PTY LTD ATF THE PROPERTY ASSETS AUST-NZ UNIT TRUST (ACN 152 862 907)

(First Appellant)

and

MOSHE ARAD

(Second Appellant)

and

DEVINA ARAD BROFMAN

(Third Appellant)

and

LA ASSETS AU PTY LTD ATF THE DEVINA BROFMAN FAMILY TRUST (ACN 152 862 907)

(Fourth Appellant)

and

PROPERTY ASSETS AUST-NZ PTY LTD (ACN 128 845 714)

(Fifth Appellant)

and

DEVINA ARAD-BROFMAN ATF DEVINA BROFMAN SUPERANNUATION FUND

(Sixth Appellant)

v

MEIKLEJOHNS ACCOUNTANTS (QLD) PTY LTD (ACN 105 135 082)

(First Respondent)

and

CAPITAL OPTIONS (AUST) PTY LTD (ACN 163 767 235)

(Second Respondent)

FILE NO/S:

D234/17

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

1 May 2018

DELIVERED AT:

Southport

HEARING DATE:

23 March 2018

JUDGE:

Kent QC DCJ

ORDER:

  1. Appeal dismissed
  2. The appellant to pay the respondents costs of and incidental to the appeal on the standard basis, unless another order is appropriate, as to which the parties have leave to make submissions in a format and time frame to be agreed and formulated in a consent direction if necessary.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – STRONG REASONS FOR INTERFERENCE – GENERALLY – where there is an action for debt – where the debt was legally assigned and the assignee substituted as the new plaintiff pursuant to r 69 UCPR – where the defendants appealed the order on the basis that they were denied procedural fairness – where the new plaintiff is a necessary party – where the substitution concerned a matter of practice and procedure – whether the procedural orders were a proper exercise of the Magistrates discretion.

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PARTIES AND REPRESENTATION – PROPER OR NECESSARY PARTY AND STANDING – where there is an action for debt – where the debt was legally assigned so that the plaintiff did not have a cause of action against the defendants – where the defendants applied for summary judgment against the plaintiff pursuant to r 658 UCPR – where the Magistrate reconstituted the proceedings to substitute the assignee as the new plaintiff pursuant to r 69 UCPR – where the defendants were not given an opportunity to be heard before the orders were made – whether the Magistrate erred in in reconstituting the proceedings.

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – THIRD PARTY PROCEEDINGS – where there is an action for debt and a counter-claim for damages for negligently performed services – where the debt was legally assigned and the assignee substituted as the new plaintiff pursuant to r 69 UCPR – where the counter-claim was reconstituted as a third party claim – where r 367 UCPR gives the court a high degree of procedural flexibility – whether the defendants are prejudiced by the reconstitution.

CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – PARTIES AND NON-PARTIES – OTHER PARTIES – where there is an action for debt – where the debt was legally assigned and the assignee substituted as the new plaintiff pursuant to r 69 UCPR – where the new plaintiff did not resist the substitution – where the new plaintiff was ordered to pay the costs of the proceeding – where a costs order is an exercise of a procedural discretion – whether the new plaintiff is liable for the costs.

Property Law Act 1974 (Qld), Section 199

Uniform Civil Procedure Rules 1999 (Qld), Rules 5, 69, 658, 765 785

BAS (Qld) Pty Ltd v Complete Taxi Management Pty Ltd [2016] QDC 54

Green v Pearson [2014] QCA 110

House v R [1936] HCA 40

COUNSEL:

K. Fleming QC for the Appellants

G Radcliff for the Respondents

SOLICITORS:

Senior Legal Pty Ltd for the Appellants

Legend Legal Group for the Respondents

Introduction

  1. [1]
    The appellants have appealed against procedural orders made in the Magistrates Court at Southport on 31 July 2017 which, in summary, ordered substitution of a new plaintiff to the existing proceedings and amendment of the proceedings to style the defendants’ counter-claim as a third party claim, with the previous plaintiff as the new third party. The appellants appeal against all of the orders made, somewhat curiously considering they were substantially successful in the application before the Magistrates Court.
  1. [2]
    The respondents resist the appeal, saying it should be dismissed as the orders made were appropriate and the reconstituted proceedings are workable.

Background

  1. [3]
    The action concerns money said to be owing as a debt to the plaintiff accountancy firm in respect of services performed for clients. The counterclaim is for damages for wrongfully or negligently performed services. The claim started life as six separate minor debt proceedings commenced in QCAT by Meiklejohns Accountants (“Meiklejohns”). The six minor debt claims were consolidated into one proceeding and transferred to the Magistrates Court at Southport for determination. In due course Meiklejohns’ statement of claim was filed and the defence and counter-claim was filed, followed by a reply and answer. Subsequently notice was given by Capital Options (Aust) Pty Ltd (“Capital Options”) of the legal assignment of the debt to it pursuant to s 199 of the Property Law Act 1974 (Qld).
  1. [4]
    Thereafter, the defendants applied for judgment against the plaintiff, on the basis that, having assigned the debt, it had no ongoing cause of action against the defendants.
  1. [5]
    When this application was heard, the Magistrate ruled in favour of the applicant defendants on the central issue. However, instead of granting the defendants judgment in accordance with their application (i.e. dismissing the plaintiff’s claim with costs), her Honour instead reconstituted the proceedings as outlined above. The appellants therefore challenge every order made by her Honour.

The appellants’ arguments

Nature of Appeal

  1. [6]
    The appellants applied to the Magistrates Court under r 658 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”). Rule 658 is a general power to make any order, including a judgment, at any stage of a proceeding that the nature of the case requires. It is to be made on the application of a party. The appellants submit that the application under that rule was in the nature of an application for summary judgment.
  1. [7]
    The result is that the decision is final insofar as it concerns the appellants’ rights against Meiklejohns as plaintiff. In the circumstances, it is said that pursuant to r 785 and r 765, the appeal is by way of re-hearing.[1]
  1. [8]
    The way in which such an appeal should be approached is summarised by McGill D.C.J. in JJ Richards & Sons Pty Ltd v Precast Concrete Pty Ltd[2]at [8];

“The ordinary characteristics of an appeal by way of rehearing are well established. It is necessary for the appeal court to make up its own mind on the basis of the findings of primary fact made at the previous hearing, unless those findings are set aside in accordance with the established principles, but it is necessary for the appellant to show that the decision under appeal was wrong.Where the appeal is from the exercise of discretion, that involves showing that there was an error of principle in the exercise of the discretion, or that the discretion miscarried, in that the result was manifestly inappropriate.” (footnotes omitted)

  1. [9]
    There are no important factual findings in this case; the relevant facts are uncontroversial. Thus the central issues are whether some legal aspect of the decision was wrong, and whether discretionary aspects were affected by error of principle or otherwise miscarried.

The Appellants Submissions as to the Orders

  1. [10]
    The appellants argue that Meiklejohns had absolutely legally assigned the debt which was the subject of the claim to Capital Options (this finding was made below and is unchallenged). Thus the Magistrate correctly resolved the issue of the legal effect of the notice of assignment with the result that the plaintiff Meiklejohns did not have a cause of action against the defendants. Thus, so it is submitted, judgment in their favour should have followed. They challenge all the orders: the failure to enter judgment for the defendants against Meiklejohns; the addition of Capital Options; the adding of Meiklejohns as a third party; the grant of leave to amend the statement of claim; the leave to amend the defence and file a third party claim; the order for the (new) third party to respond; and the costs order in its favour, saying that it should have been against Meiklejohns, not Capital Options, and should have been on the indemnity basis. There is a challenge, in paragraph 6.3 of the Notice of Appeal, to an order on the basis of an allegedly misplaced apostrophe (this is referred to by the respondents as unpersuasive pedantry; it did not seem to be pressed on the hearing of the appeal).
  1. [11]
    The appellants argue that the Magistrate then made a number of errors of law in formulating her orders. It is submitted:
  1. (a)
    Her Honour failed to dispose of the substantive application before her;
  1. (b)
    none of the parties made an application to have the proceeding reconstituted in any way, including by the joinder of Capital Options;
  1. (c)
    Capital Options had not applied to be joined as a party;
  1. (d)
    Meiklejohns were not a part of any debate about the constitution of the proceedings, having rather argued that they in fact remained the correct plaintiff;
  1. (e)
    the orders made by the Magistrate which reconstituted the proceedings were made without notice, thus the appellants were not able to make submissions thereon. This is said to be a basic and serious denial of procedural fairness which invalidates the orders.
  1. [12]
    The appellants concede that the court has a wide power under r 658, but emphasise that it is confined by the language “on the application of a party”. It is argued that, because no party had made such an application, the Magistrate was wrong to act as she did pursuant to r 658. This is both because no party applied for such orders and they were denied procedural fairness by not being heard on the formulation of the procedural orders.
  1. [13]
    The appellants argue that serious prejudice was caused to them by the orders. Further, the reconstituted proceeding is said to be unworkable (in ways which are not clearly identified).

The respondents’ submissions

  1. [14]
    The respondents respond firstly to the appellants’ complaint that the Magistrate erred in law in failing to enter judgment for the defendants against Meiklejohns. They argue that the Magistrate instead correctly took an expedient and cost efficient method of bringing the proceedings into a more regular form.
  1. [15]
    The respondents refer to the observations of Jackson J in Green v Pearson;[3]in that case his Honour emphasised the philosophy of the UCPR, particularly in r 5(1), referring to the purpose to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. The rules are to be applied to avoid undue delay, expense and technicality and to facilitate the purpose of the rules. The course taken by the magistrate is consistent, so it is said, with these purposes.
  1. [16]
    It is also pointed out that the discretionary nature of decisions made pursuant to the rules mean that appellant intervention is warranted only on grounds identified in House v R.[4]Thus, the possible grounds include whether the decision is affected by extraneous or irrelevant matters or the Judge mistakes the facts, acts on a wrong principle or does not take into account a material consideration or the decision is unreasonable or plainly unjust. Further, the fact that matters of practice and procedure only are involved means that the Appellate Court should exercise the “added restraint” that such circumstances attract and “be extremely reluctant to interfere”.
  1. [17]
    Thus, the respondents submit that there would need to be something extraordinarily wrong with the Magistrate’s approach before this court would interfere.
  1. [18]
    In relation to the substitution, the respondents refer to r 69 which provides that the court may, at any stage of a proceeding, order that a person who has been improperly or unnecessarily included as a party, or who has ceased to be an appropriate or necessary party, be removed from the proceeding and also that a necessary person be included as a party. Unlike r 658, this rule does not require an application by a party.
  1. [19]
    Broadly, the respondents argue that the Magistrate’s procedural orders were within the exercise of her discretion and no error of law is demonstrated.

Discussion

Substantive or Procedural?

  1. [20]
    Broadly, the appellants argue that her Honour made several errors in reconstituting the proceedings in the way she did. They submit that the Magistrate should have given the appellants judgment against Meiklejohns, but allowed that proceeding to nevertheless continue on the basis that the counter-claim was still to be resolved. Meiklejohns would have remained in the action simply as a defendant to the counter-claim. Further, their position is that Capital Options should not have been substituted into the existing proceeding. Rather, any rights that Capital Options has (bearing in mind that the appellants’ application was, in effect, that Capital Options, not Meiklejohns, was the correct plaintiff) could be exercised by Capital Options commencing a new and separate action, which might be heard separately from the still existing counter-claim. This has the unattractive result of two separate actions concerning connected issues; not apparently consistent with r 5(1) outlined above. This is undesirable.[5]
  1. [21]
    An important consideration is whether her Honour’s decision was an exercise of discretion which determined substantive rights, or such an exercise on a point of practice or procedure. As submitted by the respondents, the High Court in Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc[6]at p. 177 held that there is a material difference between the two, and a tight rein should be kept on interference with orders of the second kind, lest the administration of justice become unworkable.
  1. [22]
    The appellants applied under r 658, but submit the application was in the nature of summary judgment, i.e. connoting a final determination and therefore substantive in nature. That may be so, when looked at strictly vis a visMeiklejohns; the argument was that Meiklejohns presently had no cause of action left. However, more broadly, the reason was nothing whatever to do with the merits of the claim, rather it was the narrower point that the cause of action pleaded (originally owned by Meiklejohns) was presently the property of Capital Corp, a proposition which not only was proven by the appellants’ affidavit material and positively asserted by them as the basis for their application, but which appears to have been common ground (the respondents resisted the judgment not because the above scenario was controversial, rather that as a matter of law nevertheless the original plaintiff – which owned the chose in action at commencement of proceedings - could remain).
  1. [23]
    The application did not enter the debate at all about the underlying cause of action against the defendants for unpaid fees – rather, it was simply an argument about the correct identity of the creditor.
  1. [24]
    Thus the appellants’ application would not have had the effect of disposing of the cause of action substantively, particularly where there is no suggestion, for example, of a relevant limitation period having expired for the enforcement of the rights of Capital Corp. Therefore, in my conclusion the matter should be approached on the basis that the question is truly one of practice or procedure. Thus caution should be exercised in reviewing the exercise of discretion, and the question of injustice flowing from the orders will be a relevant and necessary consideration.[7]
  1. [25]
    The separate orders, or types of order, should be considered separately.

Substitution

  1. [26]
    As regards the substitution order, her Honour acted under r 69 which confers a broad discretion on the court. An application by a party is not required. A new party may be included if their presence is either necessary, or desirable, just and convenient for effectual and complete adjudication. Capital Corp meets this description, in fact it is, on the appellants’ material, a necessary party[8]. It is represented by the respondents’ lawyers and offered no resistance to the inclusion, either before the Magistrate or this court. Indeed, it does not challenge the order to pay the appellants’ costs of the original application.
  1. [27]
    The appellants criticise the order for substitution saying they had no notice of it and were thus denied procedural fairness. Some of the submissions on this topic focus on the reference to r 658 and the lack of any application by a party. However her Honour also referred to r 69, which as outlined above has no such caveat.

Procedural Fairness

  1. [28]
    There is no doubt that the right to be heard is important, indeed fundamental. In Kioa v West[9]Mason J. said at 582:

“It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.” (emphasis added)

  1. [29]
    This was further considered in Annetts v McCann[10]at pp 598-599 which considered the way a right to be heard may arise from a statutory decision. Their Honours said the question is whether the provision displays “a legislative intention to exclude the rules of natural justice and in particular the common law right of the appellants to be heard in opposition to any potential finding which would prejudice their interest”. (emphasis added)

Loss of rights or interests?

  1. [30]
    Thus, it must be considered whether the procedure adopted by her Honour deprived the appellants of some right or interest or the legitimate expectation of a benefit. The right or interest advanced is the appellants’ right to, in effect, a summary judgment against the then plaintiff, Meiklejohns. No doubt this would have had the effect of a costs order in the appellants’ favour. However, it would not have affected the substantive position of the parties; the appellants would still have to contest the merits of the matter in the same way but with a different entity. As outlined above, the appellants’ position advanced on the application was not that the money claimed by Meiklejohns was not owing, rather it was that the correct plaintiff was Capital Corp.

Loss of potential costs order

  1. [31]
    Her Honour’s order was that Capital Corp was to be responsible for the costs of the application then being dealt with. As to the ultimate costs of the action, presumably Capital Corp, if unsuccessful, would also be responsible for them. If there were any argument at the end of the day as to costs incurred in the action prior to the inclusion of Capital Corp as a party, then at that stage Meiklejohns would still remain a party to the action (as defendant to the counter claim or the third party claim) and no reason was advanced in argument before me as to why Meiklejohns could not be made responsible for those costs.
  1. [32]
    Thus, in the circumstances her Honour was dealing with, it is difficult to identify the right or interest or legitimate expectation of a benefit which the appellants were being deprived of by the orders made. The proposition was tested to some extent during argument. Senior counsel for the appellants was invited to identify the arguments which would have been presented, if an opportunity had been given to do so, in resistance to the substitution of Capital Corp under r 69. He found it difficult to identify such arguments and in the end, in my view, was not able to do so.
  1. [33]
    The order was that Capital Corp be substituted as a plaintiff. Her Honour expressed the view that the orders were required to regularise the proceedings. She awarded costs in favour of the appellants against Capital Corp, the new plaintiff. Consequences of this procedure are provided for in the Rules. Rule 74 of the UCPR relevantly provides that the proceeding against a new defendant or respondent starts on the filing of the amended copy of the originating process (r 74(4)); and for new defendants or respondents who are substituted everything done in the proceeding before it was started against the new defendant or respondent has the same effect in relation to them as for the original defendant or respondent (r 74(6)(a)), although this does not apply to pre-existing costs orders (r 74(7)). There is no specific provision referring to the substitution of a plaintiff rather than a defendant, however it is difficult to see why these provisions would not apply mutatis mutandis
  1. [34]
    Thus in substance it is hard to see what rights or interests the appellants have lost, such as to require the right to be heard before the procedural orders were made. Her Honour had accepted the appellants’ arguments as to the substance of the application before her and ruled in their favour. The only remaining issue was costs, and as outlined above, the appellants were not prejudiced by the course taken. Thus there was no deprivation of rights or interests and no right to be further heard arose; but if it did, there is no demonstrated error. The error pointed to was the action having been taken without any application by a party under r 658, but as outlined above, her Honour acted under r 69 which is broad and has no such restriction. There was in my view no identifiable error in the order, nor injustice flowing from it.

Third Party Order

  1. [35]
    The appellants submit that this order was wrong because the parties thereto were already parties to the action and the counterclaim was on foot, which embodied the cause of action contemplated by the newly envisaged third party notice. Further it is said that r 69 did not empower this process. The respondent argues conversely that r 69 is sufficiently wide and no error is demonstrated.

Discussion

  1. [36]
    R 192 creates the right to issue a third party notice by an existing defendant against a person notalready a party to the proceeding, claiming relief in the nature of a contribution or indemnity or, as is relevant in this case, relating to or connected with the original subject matter of the proceeding. The existing counterclaim is for damages for wrongfully (i.e. in breach of the contract of retainer) or negligently performed professional services, which services are the basis for the unpaid fees the subject of the claim; i.e. relating to or connected with the original subject matter of the proceeding. There are also some claims for money had and received. Curiously, it is not claimed that any amounts found to be owing in that way are able to be set off against any amounts owing by the defendants pursuant to the plaintiff’s claim.
  1. [37]
    By contrast with the third party procedure, r 177 provides for a counterclaim against the plaintiff, and r 178 provides for a counterclaim against a person other than the plaintiff, if the plaintiff is also made a party to it.
  1. [38]
    The approach taken by her Honour seems to have been that once the original plaintiff was substituted by the new party, it no longer remained as a plaintiff, thus it was not prima faciewithin the words of r 177 and thus the reconstitution of the existing counterclaim as a third party claim was appropriate. The counterclaim could not be made against both it and the new plaintiff (as r 178 contemplates), because – her Honour seems to have concluded - no basis would exist for the new plaintiff to be liable to the defendants under the pleaded causes of action against Meiklejohns.
  1. [39]
    Her Honour resorted to both r 69 and r 658 to take the action she did. The appellants argue that r 69 and 74 were not complied with, but as the respondents submit, r 367 is relevant. It provides:

Directions

  1. (1)
    The court may make any order or direction about the conduct of a proceeding it considers appropriate, even though the order or direction may be inconsistent with another provision of these rules.
  1. (2)
    In deciding whether to make an order or direction, the interests of justice are paramount.
  1. (3)
    Without limiting subrule (1), the court may at any time do any of the following in relation to a trial or hearing of a proceeding—
  1. (a)
    require copies of pleadings for use by the court before the trial or hearing;
  1. (b)
    limit the time to be taken by the trial or hearing;
  1. (c)
    limit the time to be taken by a party in presenting its case;
  1. (d)
    require evidence to be given by affidavit, orally or in some other form;
  1. (e)
    limit the number of witnesses (including expert witnesses) a party may call on a particular issue;
  1. (f)
    limit the time to be taken in examining, cross-examining or re-examining a witness;
  1. (g)
    require submissions to be made in the way the court directs, for example, in writing, orally, or by a combination of written and oral submission;
  1. (h)
    limit the time to be taken in making an oral submission;
  1. (i)
    limit the length of a written submission or affidavit;
  1. (j)
    require the parties, before the trial or hearing, to provide statements of witnesses the parties intend to call.
  1. (4)
    In addition to the principle mentioned in subrule (2), in deciding whether to make an order or direction of a type mentioned in subrule (3), the court may have regard to the following matters—
  1. (a)
    that each party is entitled to a fair trial or hearing;
  1. (b)
    that the time allowed for taking a step in the proceeding or for the trial or hearing must be reasonable;
  1. (c)
    the complexity or simplicity of the case;
  1. (d)
    the importance of the issues and the case as a whole;
  1. (e)
    the volume and character of the evidence to be led;
  1. (f)
    the time expected to be taken by the trial or hearing;
  1. (g)
    the number of witnesses to be called by the parties;
  1. (h)
    that each party must be given a reasonable opportunity to lead evidence and cross-examine witnesses;
  1. (i)
    the state of the court lists;
  1. (j)
    another relevant matter.
  1. (5)
    If the court’s order or direction is inconsistent with another provision of these rules, the court’s order or direction prevails to the extent of the inconsistency.
  1. (6)
    The court may at any time vary or revoke an order or direction made under this rule.
  1. [40]
    This was referred to in Green v Pearsonat [6]; the philosophy of the rules already referred to is reflected in r 367 which gives a broad discretion particularly to further the interests of justice. The jurisdiction to make orders or directions inconsistent with other rulesis a high degree of procedural flexibility. This was also emphasised in Owen v Menzies[11]where the Court referred to the wide nature of the power and its consistency with the Court’s inherent power to control and supervise proceedings to prevent injustice. It was also demonstrated in Barker v Linklater[12]where Muir JA explained at [51] – [59] that it extends to a trial judge revisiting and reversing a ruling already made.
  1. [41]
    The judgment in Owen v Menziesalso referred to Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (supra)for the proposition that the exercise of discretions of a judge in interlocutory matters concerning practice and procedure should only be interfered with in exceptional circumstances, as noted at [20] above.
  1. [42]
    How then should the interests of justice be balanced in this case? It is hard to see what injustice is visited upon the appellants by the third party procedure, and if this is so, there should be no interference with the order on appeal, even if it were inconsistent with a rule.
  1. [43]
    The causes of action the subject of the counterclaim are still able to be pursued by the appellants against Meiklejohns. The third party procedure can make any claim which would be available in a claim; r 191(3). Her Honour made orders that the appellants file and serve an amended defence and third party statement of claim in an appropriate time frame. If the appellants are unsuccessful as against the new plaintiff but successful against the third party, presumably they would claim against the third party, inter alia, an indemnity against the plaintiff’s claim. They would also have the ability to seek an order that they not be required to satisfy the plaintiff’s judgment until their judgment against the third party is satisfied – this is permitted under r 205(2)(d). Thus it is hard to see how their rights are prejudiced by the procedure ordered by her Honour.
  1. [44]
    The order for a third party procedure will not add to the complexity or length of the proceedings and the hearing date will not be delayed.[13]As her Honour seems to have concluded the counterclaim was no longer available for the reasons outlined above, the order for third party procedure enhances the interests of justice by avoiding the same questions being tried twice with possibly different results[14]; preventing multiplicity of actions and enabling the court to settle the parties’ disputes in one action[15]; and saving the expense of separate actions[16].
  1. [45]
    Thus no error is identified, and the orders of the Magistrate should not be altered. For the avoidance of doubt, a direction should be added that a third party notice should be delivered as well as the existing order for a third party statement of claim, although this may have been implicit in her Honour’s order.

The Costs Order

  1. [46]
    As to the order that the new plaintiff pay the costs of the application, the appellants submit the costs order should have been against the former plaintiff which wrongly resisted the application. The respondents conversely submit the order was within the wide discretion in r 681. It was not resisted at the time, by either the respondents’ counsel who had mentioned that he held instructions from the new plaintiff, or the appellants’ solicitor.
  1. [47]
    Orders against non-parties are unusual but permitted by the wide discretion as to costs; see e. g. Belar Pty Ltd (in liq) v Mahaffey[17](costs to be paid by the liquidator); Flower & Hart (a firm) v White Industries (Qld) Pty Ltd[18](costs to be paid by legal representatives). It is less easy to find a precedent for an order imposing costs on an incoming new plaintiff, but on a conceptual basis it is hard to see why it would not be within the wide discretion.
  1. [48]
    In the present case the unusual circumstance was that Capital Options was found to be the correct party; although not a party to the application, they were apparently aware of it and represented by the same counsel appearing for the original plaintiff; and raised no objection to the costs order.
  1. [49]
    A challenge to a costs order on appeal suffers from the general difficulty of any challenge to an exercise of a procedural discretion, as outlined above in the references to Green v Pearson, House v R and Adam P Male Fashions Pty Ltd v Philip Morris Pty Ltd.; see also, relating more specifically to costs orders Theiss v TCN Channel 9 Pty Limited (No. 5)[19]

“The costs of the action are a matter for the discretion of the trial judge. As such, his decision is not to be readily or lightly disturbed. There is, as Kitto J. has said in an appeal against a decision involving similar discretionary factors, ‘‘a strong presumption in favour of the correctness of the decision appealed from’’: see Australian Coal & Shale Employees’ Federation v. Commonwealth (1953) 94 C.L.R. 621, 627. There nevertheless are some settled principles on which an award of costs may be expected to proceed, and certain acknowledged considerations that may justify appellate interference with an order as to costs.”

  1. [50]
    The proposition that an appellant challenging an exercise of a discretion faces a heavy onus is well established. There should be a clear conclusion that the judge was plainly wrong to justify such intervention; Lovell v Lovell.[20]This was endorsed by his Honour again in Australian Coal & Shale Employees’ Federation v Commonwealth (supra) at p 627.
  1. [51]
    Thus the conclusion is that although the costs order against a non-party, or rather, a party freshly included, is unusual, it was within the broad discretion her Honour possessed in such matters. No error of the Housetype nor a clear conclusion that the decision was plainly wrong is demonstrated, although it might be observed that when relatively unusual steps such as these are taken it may be better to hear from the parties as to the form of the orders. Nonetheless, no error is demonstrated and the conclusion is that none of the challenges to the costs order or the other various orders are made out. The result is that the appeal should be dismissed. Costs should follow the event unless another order is shown to be appropriate. I will, however, allow the parties to be heard as to costs, by oral or written submissions if and as desired.

Footnotes

[1]See BAS (Qld) Pty Ltd v Complete Taxi Management Pty Ltd [2016] QDC 54 at [6].

[2][2010] QDC 272.

[3][2014] QCA 110.

[4][1936] HCA 40.

[5]See Project Company No 2 Pty Ltd v Cushway Blackford & Associates Pty Ltd & Anor [2011] QCA 102 per Jackson J at [26].

[6](1981) 148 CLR 170.

[7]See Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (supra) at p. 177.

[8]See Interchase Corp Ltd (in liq) v FAI General Insurance Co Ltd [2000] Qd R 301 at 316.

[9](1985) 159 CLR 550.

[10](1990) 170 CLR 595.

[11][2010] QCA 137.

[12][2008] 1 Qd R 405.

[13]Contrast Just GI Pty Ltd & Ors v Nomoheith Pty Ltd [2000] QSC 163 at [14].

[14]Benecke v Frost (1876) 1 QBD 419.

[15]Edwards v Edwards [1913] VLR 30.

[16]Barclays Bank v Tom [1923] 1 KB 221.

[17][2000] 1 Qd R 477.

[18](1999) 163 ALR 744.

[19](1994) 1 Qd. R. 156 at 207.

[20](1950) 81 C.L.R. 513 at 533 per Kitto J.

Close

Editorial Notes

  • Published Case Name:

    LA Assets AU Pty Ltd ATF The Property Assets Aust-NZ Unit Trust (ACN 152 862 907) & Ors v Meiklejohns Accountants (Qld) Pty Ltd (ACN 105 135 082) & Anor

  • Shortened Case Name:

    LA Assets AU Pty Ltd v Meiklejohns Accountants (Qld) Pty Ltd

  • MNC:

    [2018] QDC 76

  • Court:

    QDC

  • Judge(s):

    Kent DCJ

  • Date:

    01 May 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated (1981) 148 C.L.R 170
2 citations
Jump To
Cite 1 - (1981) 148 C.L.R 170
Cite 2 - (1981) 148 C.L.R 170
Annets v McCann (1990) 170 CLR 595
1 citation
Jump To
Cite 1 - (1990) 170 CLR 595
Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
2 citations
Jump To
Cite 1 - (1953) 94 CLR 621
Cite 2 - (1953) 94 CLR 621
Barclays Bank v Tom (1923) 1 KB 221
1 citation
Jump To
Cite 1 - (1923) 1 KB 221
Barker v Linklater[2008] 1 Qd R 405; [2007] QCA 363
1 citation
Jump To
Cite 1 - [2008] 1 Qd R 405
BAS (QLD) Pty Ltd v Complete Taxi Management Pty Ltd [2016] QDC 54
2 citations
Jump To
Cite 1 - [2016] QDC 54
Cite 2 - [2016] QDC 54
Benecke v Frost (1876) 1 QBD 419
1 citation
Jump To
Cite 1 - (1876) 1 QBD 419
Edwards v Edwards [1913] VLR 30
1 citation
Jump To
Cite 1 - [1913] VLR 30
Flower & Hart v White Industries (QLD) Pty Ltd (1999) 163 ALR 744
1 citation
Jump To
Cite 1 - (1999) 163 ALR 744
Green v Pearson [2014] QCA 110
2 citations
Jump To
Cite 1 - [2014] QCA 110
Cite 2 - [2014] QCA 110
House v R (1936) HCA 40
2 citations
Jump To
Cite 1 - (1936) HCA 40
Cite 2 - (1936) HCA 40
Interchase Corp Ltd (in liq) v FAI General Insurance Co Ltd [2000] Qd R 301
1 citation
Jump To
Cite 1 - [2000] Qd R 301
JJ Richard & Sons Pty Ltd v Precast Concrete Pty Ltd [2010] QDC 272
1 citation
Jump To
Cite 1 - [2010] QDC 272
Just GI Pty Ltd v Nomoheith Pty Ltd [2000] QSC 163
1 citation
Jump To
Cite 1 - [2000] QSC 163
Kioa v West (1985) 159 C.L.R 550
1 citation
Jump To
Cite 1 - (1985) 159 C.L.R 550
Lovell v Lovell (1950) 81 CLR 513
1 citation
Jump To
Cite 1 - (1950) 81 CLR 513
Mahaffey v Belar Pty Ltd (in liq)[2000] 1 Qd R 477; [1999] QCA 2
1 citation
Jump To
Cite 1 - [2000] 1 Qd R 477
Owen v Menzies [2010] QCA 137
1 citation
Jump To
Cite 1 - [2010] QCA 137
Project Company No 2 Pty Ltd v Cushway Blackford & Associates Pty Ltd [2011] QCA 102
1 citation
Jump To
Cite 1 - [2011] QCA 102
Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156
1 citation
Jump To
Cite 1 - [1994] 1 Qd R 156

Cases Citing

Case NameFull CitationFrequency
LA Assets AU Pty Ltd v Meiklejohns Accountants (Qld) Pty Ltd (No 2) [2019] QDC 82 citations
1

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