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Liu v Body Corporate for the Winston (Cairns) Community Titles Scheme 37263[2024] QDC 228

Liu v Body Corporate for the Winston (Cairns) Community Titles Scheme 37263[2024] QDC 228

DISTRICT COURT OF QUEENSLAND

CITATION:

Liu v The Body Corporate for the Winston (Cairns) Community Titles Scheme 37263 [2024] QDC 228

PARTIES:

JUBO LIU

(appellant)

V

THE BODY CORPORATE FOR THE WINSTON (CAIRNS) COMMUNITY TITLES SCHEME 37263

(respondent)

FILE NO/S:

68/24

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Cairns – date of Order: 29 May 2024 

DELIVERED ON:

21 November 2024

DELIVERED AT:

Cairns

HEARING DATE:

21 November 2024

JUDGE:

Porter KC DCJ

ORDER:

  1. The appeal be dismissed.
  2. Mr Liu pay the respondent’s costs on an indemnity basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – ORDERS SET ASIDE OR VARIED – where the appellant appeals orders striking out certain paragraphs of the then-current fourth amended counterclaim – where the defendant appeals from that decision – where the appellant contends the orders should be set aside for want of jurisdiction – where the appellant contends the learned Magistrate should have, of its own motion, transferred the proceedings to a court with jurisdiction – whether the appeal be allowed, the orders be set aside and the matter be transferred to the Supreme Court

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF THE COURT – COSTS – where the respondent seeks costs of the appeal on the indemnity basis – where the appellant brought a related proceeding in the Supreme Court which failed – where the Magistrate’s reasons for striking out the heart of the counterclaim that got no leave to replead was that it was, in effect, a personal injuries claim that did not comply with the pre-litigation process – where it was an abuse of process to bring the appeal in those circumstances – whether the appellant pay the costs of the appeal on the indemnity basis

LEGISLATION:

Magistrates Courts Act 1921 (Qld), s. 4(1)(a)

Civil Proceedings Act 2011 (Qld), s. 29

Personal Injuries Proceedings Act 2002 (Qld)

CASES:

Merrin v Cairns Port Authority [2006] QCA 278

COUNSEL:

C E Taylor for the respondent

SOLICITORS:

SLF Lawyers for the respondent

No appearance by the appellant

  1. Introduction
  1. [1]
    On 29 May 2024, the learned Magistrate made orders in the civil proceeding before the Court between the Body Corporate for the Winston Community Titles Scheme (the Body Corporate) and Mr Jubo Liu.  Her Honour’s orders are extensive, but of particular concern in the appeal is that her Honour struck out certain paragraphs of the then-current fourth amended counterclaim, filed 7 May 2024.  Her Honour gave leave to replead, but only in respect of certain paragraphs, and not in respect of others.  She also dealt with what had become an obsolete application for summary judgment, by allowing the plaintiff to withdraw the application, and made no order as to costs. 
  1. [2]
    She also made perhaps optimistic orders that would have got this matter to trial by the 8th and 9th of last month.  Unfortunately, those trial dates were not able to be maintained.  A principal reason – if not the principal reason – for that is that Mr Liu appealed her Honour’s decision. 
  1. [3]
    The appeal, at least as articulated in the notice of appeal, is of narrow scope. The gravamen of the appeal, as I apprehend it, is that:
  1. The amount of the appellant’s counterclaim, at the time of her Honour’s hearing, was over the Magistrates Court limit; 
  2. The Magistrates Court should therefore not have struck out any paragraphs, because it had no jurisdiction; and
  3. Rather, that Court should have, of its own motion, transferred the proceedings to a court with jurisdiction. 
  1. [4]
    There also seems to be a ground based on a rather vague allegation of an error of law.
  1. [5]
    The orders sought are to allow the appeal, have her Honour’s orders set aside, and transfer the matter to the Supreme Court.
  1. Background
  1. [6]
    The history of this matter is unfortunate. Mr Taylor, who appeared for the respondent, set out the procedural history in his outline, as follows (footnotes omitted):
  1. 7.
    The respondent plaintiff is the body corporate of a community title scheme.  The appellant defendant is a current lot owner within that scheme.  The plaintiff claims against the defendant for unpaid levies, none having been paid since 1 August 2019, penalty interest, and recovery costs.   The defendant defends the claim in its entirety whilst also pressing a counterclaim.
  1. 8.
    On 12 April 2023, the Magistrates Court gave summary judgment to the plaintiff in the amount of $67,988.39, and dismissed the defendant’s counterclaim.  The defendant appealed that decision to this Court.
  1. 9.
    On 31 October 2023, this Court allowed that appeal setting aside the orders of the Magistrates Court, and remitting the matter to the Court below.
  1. 10.
    Following that remittal, on 12 December 2023 the Magistrates Court gave directions for the future conduct of the proceeding.  The matter has thereafter proceeded generally in accordance with those directions and subsequent directions of the Court.
  1. 11.
    On 5 February 2024, the plaintiff’s filed its amended claim in the aggregate of $137,560.96 plus penalty interest accruing from 1 February 2024 at $325.78 per month, plus interest on the recovery costs, plus costs under Chapter 17A of the UCPR from 1 January 2024.
  1. 12.
    On 26 February 2024, by way of his 3rd Amended Defence and 3rd Amended Counterclaim the defendant once again defended the claim in its entirety, and again pressing his counterclaim current albeit substantially enlarged to $1,137,914, such said to be for restitution of a contribution overpayment in earlier years and of charges levied on him erroneously, repair costs and rent loss arising from water damage, opportunity loss, and damages arising from health loss and discrimination.
  1. 13.
    On 12 March 2024, by way of its 2nd Amended Reply and Answer, the plaintiff responded to the 3rdamended defence and counterclaim, noting therein that certain parts of the defendant’s pleading should be struck out and giving reasons why.
  1. 14.
    On 15 March 2024, it followed that up with its application for strike out, such being listed for hearing on 16 April 2024.  Directions were subsequently given on 19 March 2024 for the conduct of the application up to and including hearing.  Consistent with those directions, on 22 March 2024 the plaintiff filed its Outline of Argument, on 5 April 2024 the defendant filed his Outline of Argument as well as his ‘Reply and Answer’ to the plaintiff’s 2nd Amended Reply and Answer; and on 12 April 2024 the plaintiff filed its Reply Outline.
  1. 15.
    On 16 April 2024, the hearing was adjourned at commencement until 14 May 2024.  It was listed that day before the Magistrate who had given summary judgment and accordingly recused himself.
  1. 16.
    On 7 May 2024, despite having been ready to proceed on 16 April 2024, only a few days before the hearing was to reconvene the defendant filed his 4th Amended Defence and 4th Amended Counterclaim.  It substantially altered his earlier defence and counterclaim in terms of content and paragraph numbers in respect of which the plaintiff’s application for strike out had been advanced.  It is apparent that, to some degree, he had attempted to address the plaintiff’s criticisms the subject of its strike out application.
  1. 17.
    On 14 May 2024, the hearing occurred.  As a direct consequence of the defendant’s substantially amended defence and counterclaim, at the start of the hearing the plaintiff sought leave to amend its application.  Leave was granted.  In making that amendment, the plaintiff no longer sought for any part of the defence to be struck out, and identified the relevant paragraphs in the new pleaded counterclaim that it sought to be struck out.  It was that amended application that was the subject of the discussion in the hearing below.  At the conclusion of that hearing the Magistrate gave her decision, and reasons for same, to strike out certain paragraphs of the 4th amended counterclaim.  However she did not deal with the issue of costs of the application, or the review of the substantive proceeding, also reserving her consideration of whether leave to replead should be granted, with the hearing to reconvene on 29 May 2024.
  1. 18.
    On 15 May 2024, by way of e-mail via the Registry, the Magistrate referred the parties to the decision of Barlow KC DCJ in The Body Corporate for the Anchorage One v Huang [2022] QDC 119 (Huang), requesting the parties to address the Court on it should they do wish.
  1. 19.
    On 29 May 2024, the parties returned to the Court.  On that occasion, having considered his Honour’s reasoning and conclusions in Huang, the plaintiff informed the Court that to the extent the defendant may seek to recast the impugned parts of his counterclaim on a basis or bases which fell within the jurisdiction of the Court outside the ambit of those provisions:
  1. (a)
    it no longer pressed its argument reliant on the exclusivity of the dispute resolution provisions of Chapter 6 of the Body Corporate and Community Management Act 1997 (Qld); but
  1. (b)
    it maintained its argument in terms of those parts of the counterclaim that were effectively personal injuries claims, and discrimination claims; and
  1. in this circumstances the defendant should be given leave to replead those parts of the counterclaim the Magistrate had concluded on 14 May 2024 should be struck out.
  1. 20.
    Ultimately, the learned Magistrate granted leave in part only.  The outcome was The following parts were struck out:
  1. (a)
    with leave to replead:
  1. (i)
    The water damage / loss of rent claim, being paragraphs 16 to 19; and
  1. (ii)
    The loss of opportunity claim, being paragraph 27.
  1. (b)
    without leave to replead:
  1. (i)
    The personal injuries claims, being paragraphs 25, 26, 28; and
  1. (ii)
    The discrimination claims, being the unnumbered paragraph between paragraph 20 and 21, and paragraphs 21 to 24.
  1. 21.
    As the contest now stands in the Court below:
  1. (a)
    The plaintiff has filed and served its 3rd Amended Claim and 4th Amended Statement of Claim, accounting for further unpaid levies and other corrections in its claim as identified, the aggregate of the claim now being $150,147.91 plus penalty interest accruing from 1 August 2024 at $448.22 per month, plus interest on the recovery costs, plus costs under Chapter 17A of the UCPR from 1 January 2024.
  1. (b)
    The defendant has filed and served his 5th Amended Defence and 5th Amended Counterclaim.  He continues to defend the claim in its entirety.  His counterclaim is now said to be $1,565,327.90.
  1. [7]
    I have considered a good deal of the material relied upon and found no reason to cavil with that summary.
  1. [8]
    Her Honour gave a summary of the nature of the proceedings in her reasons. Basically, the plaintiff is suing to recover body corporate fees and legal costs claimed in the proceeding pursuant to the right to claim them under the relevant Body Corporate and Community Management (BCCM) legislation. 
  1. [9]
    The real complexity in the case comes from Mr Liu’s defence and counterclaim. The gravamen of his defence is that there are various aspects of the procedural and substantive process that led to the levies being determined and invoiced which makes them unlawful. His defence challenges not only the lawfulness of substantive amounts claimed, but also whether he was entitled to a certain deduction, whether he is properly exposed to the late payment amounts, and whether he is properly exposed to recovery costs.
  1. [10]
    The fourth amended defence and amended counterclaim is the version that was before her Honour. The defence is, in my respectful view, in a form that does not comply with the rules in a material way. It is complicated. It is hard to follow. It does not articulate material facts in a clear way. However, before her Honour, the Body Corporate was not seeking to strike out the defence. I infer that forbearance was in the hope of just getting the matter to a trial.
  1. Whether the Magistrates Court has jurisdiction
  1. The plaintiff’s claim
  1. [11]
    Before I leave the claim and the defence, I note that one of the principal grounds of appeal raised by Mr Liu, in his notice of appeal and in his two outlines of argument, is that the plaintiff’s claim is outside the Magistrates Court’s jurisdiction.
  1. [12]
    The Magistrate’s Court civil jurisdiction is $150,000. The total of the claims of the plaintiff exceeds that amount. However, it is not the case that just because the total amount claimed by a party exceeds $150,000 that that court does not have jurisdiction. The court’s civil jurisdiction is defined in section 4 and, in particular, s. 4(1)(a) of the Magistrates Courts Act 1921 (Qld), where the court is given jurisdiction in, “every personal action in which the amount, value or damage sought to be recovered is not more than the prescribed limit…”.
  1. [13]
    That language is analogous to the language of the District Court of Queensland Act 1967 (Qld) at s. 68(1)(a).  That has been authoritatively determined as applying the monetary limit to each individual cause of action contained in a statement of claim: see Merrin v Cairns Port Authority [2006] QCA 278.  In this case, it is evident from the pleading that was before her Honour, and now, that there are separate causes of action. 
  1. [14]
    Indeed, I think it is likely that each non-payment of levy creates a separate cause of action. And then there are separate causes of action for recovery cost, penalty and so on, arising under different statutes. Once that principle is identified, the proposition that the Magistrates Court did not have jurisdiction is without foundation. Indeed, the Body Corporate seems to have a fair bit of headroom in those several causes of action before it reaches the monetary limit for any individual cause of action. There is no merit to Mr Liu’s contention that the Magistrates Court did not have jurisdiction in the plaintiff’s claim.
  1. [15]
    (The monetary limits of the Magistrates and District Court were set based on recommendations in the Moynihan Report in 2008, and have not been reviewed now, for 16 years. It is long past time for that to be reviewed, as indeed Mr Moynihan recommended.)
  1. The counterclaim
  1. [16]
    Mr Liu also appeals on the basis that his counterclaim exceeded the monetary limit of the Magistrates Court. The difficulty with that is that the Parliament has turned its mind to what to do to where a claim is within the court’s jurisdictional limit, and a counterclaim is brought in that proceeding outside the court’s jurisdictional limit. It deals with that for each of the several courts in this state, including the Magistrates Court, in s. 29 of the Civil Proceedings Act 2011 (Qld), which provides as follows:
  1. 29
    Transfer because counterclaim beyond jurisdiction
  1. (1)
    This section applies if a party to a proceeding in a court (the relevant court) files a counterclaim for relief not within the relevant court’s jurisdiction.
  1. (2)
    A court having jurisdiction for the counterclaim may order that—
  1. (a)
    all of the proceeding be transferred to that court; or
  1. (b)
    the counterclaim be transferred to that court; or
  1. (c)
    all of the proceeding be heard and decided by the relevant court.
  1. (3)
    If an order is made under subsection (2), the registrar of the court that made the order must give a copy of it to the registrar of the relevant court.
  1. (4)
    If an order is made under subsection (2)(b)—
  1. (a)
    the relevant court must hear and decide the balance of the proceeding; and
  1. (b)
    unless the court hearing the counterclaim orders otherwise, enforcement of any judgment in relation to the balance of the proceeding is stayed until judgment is given in relation to the counterclaim.
  1. (5)
    Despite any other Act or law, the relevant court is taken to have jurisdiction to hear and decide all of the proceeding if—
  1. (a)
    no application is made for an order under subsection (2)(a) or (b) within 14 days after the counterclaim is served on the other party or parties to the proceeding; or
  1. (b)
    an order is made under subsection (2)(c).
  1. [17]
    The effect of that provision, applied here, is that the Magistrates Court is taken to have jurisdiction to hear and determine all of the proceeding (necessarily including a counterclaim filed in the proceeding) if there is no application made for an order under s. 29(2)(a) or (b).
  1. [18]
    Despite Mr Liu’s complaints about jurisdiction over the counterclaim, he has never brought such an application, and certainly did not within the 14 days after he filed it. Mr Taylor for the Body Corporate suggested that a litigant in person might ordinarily be given a little leeway on such an application, if brought outside the 14 days; but whether that is so or not, the counterclaim was brought a long time ago and no application has ever been brought. Given the stage of proceedings, the idea that the court would then shift this proceeding at this stage, even if such an application was brought, seems unlikely. That disposes of that ground of appeal.
  1. Whether the learned Magistrate ought to have struck out the counterclaim
  1. [19]
    I have so far been able to avoid engaging directly with the content of the counterclaim that was struck out by her Honour. The counterclaim that was before her Honour is as defective as the defence. However, it has more fundamental failings. Before her Honour there were three substantive points raised in respect of the strikeout.
  1. [20]
    The first related to a claim for rent loss and interest on that arising from some failure by the Body Corporate to take certain action it should have taken. That was in paragraphs 16 and 17 of the counterclaim. Claims similar in character were advanced in paragraphs 18 and 19.
  1. [21]
    There was then an obscure claim for legal costs, which I do not understand, but it was not dealt with by her Honour.
  1. [22]
    Most prominently, there was then – from after paragraph 20, under the heading “Discrimination offence to the Defendant by the Plaintiff,” through to paragraph 28 – a confused and confusing mishmash of allegations, the gravamen of which seem to be that somehow the Body Corporate, by its misconduct, including its discrimination to him, caused him losses. Those losses are said to be personal injury losses.
  1. [23]
    Her Honour was inclined to strike out paragraphs 16 to 19 inclusive on the basis that they gave rise to matters which had to be dealt with by the dispute resolution processes in the BCCM legislative scheme. Mr Liu challenges that conclusion, and for the purposes of this appeal, Mr Taylor for the Body Corporate does not press the correctness of that proposition. It appears that that concession was made after her Honour’s initial set of reasons, and that her Honour then granted leave to replead in respect of paragraphs 16 to 19. That certainly appears in her Honour’s order. Whatever may have happened procedurally – and I frankly do not have to get to the bottom of it – her Honour did give leave to replead those paragraphs, and so she clearly, in making her order, did not ultimately form the view that they were matters which, as a matter of law, could not be raised in the counterclaim.
  1. [24]
    I infer her Honour struck them out in any event because they were embarrassing in form. That is, likely to interfere with the fair trial or the proceedings. That conclusion is clearly correct, as it would be for the whole of the pleading. But in any event, leave has been given to replead. I cannot see any error in her Honour’s decision, in that regard.
  1. [25]
    Her Honour dealt with the discrimination and personal injuries claims on the basis that if a claim was being made for loss arising from discrimination under the Act, there was a process in that Act for pursuing such claims. That is undoubtedly correct. It undoubtedly has not been pursued. Her Honour was right, to the extent a discrimination claim was being advanced, to strike out those allegations without leave to replead.
  1. [26]
    However, reading the pleading – which I say respectfully to Mr Liu , is not easy – it seems to be that what is being pursued is a personal injury claim arising from the discrimination and other several causes, and it was submitted to her Honour, correctly, that those claims could not be brought without compliance with the pre-litigation procedures in the Personal Injuries Proceedings Act 2002 (Qld).  That was clearly correct.  Her Honour was correct to strike out, then, all of paragraphs 21, including the paragraph proceeding it, through to the end of paragraph 28, and not to give leave to replead. 
  1. [27]
    Mr Liu clearly tries hard on the law. One of the reasons he considered her Honour erred in respect of striking out and refusing leave to replead for the personal injury/discrimination case was his reliance on s. 7 of the Civil Proceedings Act 2011 (Qld).  That section is not a source of separate civil jurisdiction for a court.  In effect, it is broadly designed to allow courts, so far as possible, to deal with all matters, including matters of equity and law in the same proceeding. It is not a source of independent jurisdiction for the court. Mr Liu’s reliance on s. 7 is mistaken.  Section 29 is the section that gives jurisdiction in this case, and its effect is to give jurisdiction to the Magistrates Court to deal with this counter claim. 
  1. [28]
    For those reasons, I see no error in her Honour’s judgement and nor, doing the best I can with the assistance of Mr Taylor, do I see anything that Mr Liu raises that would justify setting aside her Honour’s decision.
  1. The appellant’s absence from the appeal hearing
  1. [29]
    Mr Liu is not present today. My inquiries with counsel for the Body Corporate – and, through him, with his instructing solicitor and the persons in his instructing solicitor’s office who might have heard from Mr Liu – confirm that nothing has been heard from him. I waited until 30 minutes after the listed starting time for Mr Liu to come. He did not arrive.
  1. [30]
    I inquired with Mr Taylor as to how notice of this hearing was given, and he informed me, and I accept, that Judge Treviño KC listed it for hearing before me, as the visiting judge, at an appearance on the 21st of October 2024. At that time the matter was planned to proceed, but it could not because of some possibility his Honour had discussed the matter while at the bar with Mr Taylor.  It was at that hearing that the matter was listed for today, and Mr Liu, I am told, was there that day.  He appeared before Judge Treviño KC and, consistent with what Mr Taylor recalls, the matter was listed on that date for hearing today.  We had Mr Liu called.  He did not appear. 
  1. [31]
    In those circumstances, I asked Mr Taylor whether he sought to have the appeal dismissed for failure to appear, or whether his client wanted the matter to be determined in substance. Understandably, he preferred the latter course. To give effect to that, I have regard to Mr Liu’s outline, and also to a further outline which I have had placed on the file, prepared by Mr Liu, seemingly for use before Judge Treviño KC. That notably attaches his fifth amended defence and counter claim, a document filed after her Honour’s hearing, and presumably attempting to give effect to her Honour’s strikeouts and leave to replead.
  1. [32]
    Mr Taylor was content for the court to take into account that outline and, to be fair, that required me to have regard to the pleading filed after her Honour’s orders were made. Otherwise, I had effectively everything that passed in the matter below before me.
  1. The discrimination issues
  1. [33]
    Now, I have already determined that there was no error in her Honour’s reasons. I should say that even if there is some obscure way that somehow the discrimination issues could be pleaded as issues of fact – which presently alludes me – the pleading of the case would still seem to be one for damages for personal injury, which cannot be brought unless the pre-litigation procedures in the Personal Injuries Proceedings Act 2002 (Qld) are complied with, or otherwise leave is granted to commence proceedings under s. 43 of that Act. 
  1. [34]
    I think it is fair to say Mr Taylor’s view is that it is more likely the discrimination matters are really said to be facts giving rise to the impermissible personal injuries claim, rather than a particular claim for discrimination; but either way, the court has no jurisdiction to deal with it.
  1. The fifth amended defence and counterclaim
  1. [35]
    That leaves me with the fifth amended defence and counterclaim. That is as defective a document as all of its predecessors. Advantage is taken of the leave to replead granted by her Honour. Mr Taylor’s position is that his client is just willing to box on with what they have got in the interests of getting to a trial. What I did want to deal with is the re-articulation of the discrimination offence as a nuisance or negligence case. That is dealt with in paragraphs 21 to 25.
  1. [36]
    The way that that is pleaded is obscure, to say the least. It is unintelligible. It seems to have been pleaded because Mr Liu came up with the idea that a negligence claim could be brought against the Body Corporate, notwithstanding the dispute resolution procedures in the BCCM statutory scheme. As I have said, those issues do not figure in her Honour’s decision, nor in this appeal, anymore. More troubling though, is that this so-called nuisance/negligence of the plaintiff causing the defendant serious mental health damage is, to the extent it is anything, a claim for damages for personal injury arising from negligence. It is yet another claim which could only be brought under the Personal Injuries Proceedings Act 2002 (Qld).  Not only is that pleading defective in form, but it is also a second occasion in which Mr Liu has pleaded a personal injuries case that cannot be conducted without compliance with the pre-litigation processes. 
  1. [37]
    Paragraphs 21 to 25 are an abuse of process because Mr Liu has, in effect, pleaded again the same defective claim. It is irrelevant that Mr Liu is not intending to abuse the court’s processes, because intention is not a necessary element of this form of abuse of process. He has run an untenable claim, it has been struck out, the reasons have been explained, and he has run it again. That is an abuse of process.
  1. [38]
    What to do: paragraphs 21 to 25 should not be pursued, particularly noting paragraph 25, which contains a threat that the anti-discrimination counterclaim is only crossed off “temporally” – presumably, “temporarily” – and will be added on after the proceeding is transferred to a higher court with corresponding jurisdiction. Presently, as I have said, my view is paragraphs 21 to 25 are an abuse of process and would be struck out by any court for the asking.
  1. [39]
    However, even if I was minded to do that, notwithstanding Mr Liu is not here (remembering, of course, he put this pleading before the court by his strikeout submissions provided to the other side), I will not make any order, because the respondent does not seek it; again, presumably, in an understandable wish to finally get to the end of this case.
  1. The application for summary judgment
  1. [40]
    There also was some cavilling in some of Mr Liu’s submissions with her Honour’s orders in respect of the summary judgment. He articulated no reason why they were affected by legal error, and on my understanding of the history of the matter, I can see no reason why I should go behind her Honour’s exercise of discretion in respect of the application for summary judgment. None of the other specific orders were challenged.
  1. Conclusion
  1. [41]
    Accordingly, for those reasons, I order that the appeal be dismissed.
  1. Costs
  1. [42]
    The Body Corporate seeks the costs of the appeal. There is no reason they should not get them. They seek their costs on the indemnity basis. Mr Taylor had an affidavit, which dealt with the matters that he wanted to put before the court in that regard. I gave him lead to read and file them. The respondent was willing to live with an arrangement about submissions, but the reality is this matter was listed for hearing today. Mr Liu is not here. One of the matters that one could ordinarily expect to be dealt with, especially in respect of an appeal, is the question of costs.
  1. [43]
    Given the history of this matter, there is a compelling public and private interest in the prompt resolution of all aspects as soon as possible. Mr Taylor submits that the basis of this appeal was that the court did not have jurisdiction, that it should be transferred elsewhere, and that the evidence is that some months ago the solicitors for the respondents emailed Mr Liu and said, in effect, “Look, if that is your position, bring such an application (to transfer) and we will dismiss the appeal and deal with the matters afresh in that court.” Mr Liu continued with the appeal and brought a proceeding in the Supreme Court, which failed.
  1. [44]
    I am not sure that, by itself, justifies indemnity costs. While her Honour’s order stood, the pleading will have been struck out. Although, I suppose the gravamen of the case was the orders of the appeal, and whether the orders were invalid because they were outside jurisdiction. It certainly has the flavour of an abuse of process, given that it was Mr Liu’s position to bring the proceedings to transfer to the Supreme Court and press for this to continue.
  1. [45]
    However, an additional and, in my view, more compelling reason is this: her Honour’s reasons for striking out the heart of the counterclaim was that it comprised a personal injuries claim that did not comply with pre-litigation requirements.
  1. [46]
    Her Honour explained in her detailed reasons, what the problem was. In my view, in the absence of turning his mind to considering those reasons, it was an abuse of process to press this appeal.
  1. [47]
    One can see that the appeal is an abuse because of what Mr Liu actually did before the matter got before me, which was to file yet another counterclaim which repeated the hopeless and confused personal injuries claim. I am conscious that litigants in person should be given some leeway when appealing; but equally, a represented person is entitled the whole of their rights. A litigant in person cannot say, “Oh, because I am a litigant in person, I am just going to ignore the reasons the Judge gave and just appeal on a spurious basis while at the same time producing another pleading, which is itself an abuse of process, on exactly the same basis.”
  1. [48]
    For that reason, I order Mr Liu to pay the Body Corporate’s costs of this proceeding on an indemnity basis.
Close

Editorial Notes

  • Published Case Name:

    Liu v The Body Corporate for the Winston (Cairns) Community Titles Scheme 37263

  • Shortened Case Name:

    Liu v Body Corporate for the Winston (Cairns) Community Titles Scheme 37263

  • MNC:

    [2024] QDC 228

  • Court:

    QDC

  • Judge(s):

    Porter KC DCJ

  • Date:

    21 Nov 2024

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2024] QDC 22821 Nov 2024-
Notice of Appeal FiledFile Number: CA 294/2523 Jan 2025-

Appeal Status

Appeal Pending

Cases Cited

Case NameFull CitationFrequency
Merrin v Cairns Port Authority [2006] QCA 278
2 citations
Jump To
Cite 1 - [2006] QCA 278
Cite 2 - [2006] QCA 278
The Body Corporate for the Anchorage One v Huang [2022] QDC 119
1 citation
Jump To
Cite 1 - [2022] QDC 119

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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