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[2025] QCA 174
respondent. Appeal dismissed with the appellant to pay the respondent’s costs of the appeal.
The Commissioner had unpaid costs orders against Mr Amos and sought to enforce them using a warrant. Mr Amos argued that a two-year inactivity rule meant the Commissioner needed leave, that the delay justified stopping enforcement, and that he should be allowed to challenge the costs assessments. The Court of Appeal rejected the first two arguments. It agreed that the primary judge had used the wrong 14-day rule for the costs-review application because Mr Amos had requested reasons, but held that this mistake did not change the result: he had earlier opportunities to raise objections and had not shown grounds for setting aside the assessments or orders. The appeal was dismissed with costs.
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2,146 words · generated 07/10/2026
The dispute arose from unpaid land tax and the later enforcement of costs orders. On 12 June 2014, the Commissioner obtained summary judgment for part of its claim against Edward Amos, and Mr Amos was ordered to pay the Commissioner’s costs of that application ([3]). The balance of the claim was dismissed by consent in May 2015, but Mr Amos remained liable for costs of the proceeding and related applications ([4]).
3 cited instruments linked from this judgment.
A costs assessor assessed the relevant costs. Two certificates were filed in 2017, one on 28 April and the other on 31 May. The court then made costs orders requiring payment of the certified amounts. The outstanding total was $122,464.83 ([5]). The Commissioner applied for an enforcement warrant in August 2017. It was issued but not executed, and the Commissioner obtained renewals ([6]).
In 2025, the Commissioner sought declarations permitting an enforcement officer to seize and sell identified properties under the warrant. Mr Amos sought to set aside the warrant under UCPR r 819 and to review the costs certificates and set aside the certificates and orders under r 742 ([8]–[9]). The primary judge granted the declarations and dismissed both applications. Mr Amos appealed on three grounds: the scope of the two-year inactivity rule in r 389(2), the refusal to impose a sanction for delay under r 5(4), and the time limit for reviewing the costs certificates under r 742(2) ([10]).
The Court of Appeal, constituted by Mullins P, Doyle JA and Cooper J, dismissed the appeal with costs. Mullins P and Doyle JA agreed with Cooper J’s reasons ([1]–[2], [60]).
For ground 1, the issue was whether r 389(2) applied to enforcement proceedings. That rule prevents a party from taking a new step in a proceeding after two years without a step, unless the court orders otherwise ([12]). Mr Amos relied on the CPA definition of “proceeding” and on Amos v Wiltshire, which had treated an enforcement-warrant application as incidental to the principal proceeding in a different statutory context ([14]–[19]).
Cooper J accepted that CPA definitions can assist in applying the UCPR, and noted that Amos v Wiltshire had applied the definition in relation to r 371(1) ([20]). But the question was how the definition operated in r 389(2), read with the other enforcement rules. UCPR r 799(1) specifically permits an enforcement creditor to start enforcement proceedings without leave within six years after the money order. If r 389(2) also applied, a creditor could require leave after two years of inactivity, despite being within the six-year period. The court treated that as a conflict and applied the contextual limitation in r 4(3) ([20]–[22]). It also relied on the principle that, where an apparent inconsistency cannot otherwise be resolved, a specific provision may take priority over a general one. Here, r 799(1) was specific to starting enforcement proceedings, whereas r 389(2) was general ([23]). Ground 1 therefore failed ([24]–[26]).
For ground 2, the court considered whether the Commissioner’s delay justified restraining enforcement as a sanction under r 5(4). The rule framework imposes obligations on parties to proceed expeditiously and empowers the court to impose appropriate sanctions for non-compliance ([27]). The court rejected the claim that the primary judge had confined sanctions to cases involving delay before trial and loss of evidence. It read the reasons as identifying that kind of prejudice as a relevant difference, not as limiting the discretion to those cases ([33]–[34]).
The 2020 letter of demand concerned stamp duty and penalties, not the costs orders. However, Cooper J accepted that the letter was connected with the enforcement dispute because Mr Amos relied on declarations of trust to resist enforcement. In that context, it indicated that the Commissioner had not abandoned enforcement ([35]–[36]). The court also found no evidence of real prejudice caused by delay. Mr Amos said he had been surprised because he thought the issues had been finalised or abandoned, but he did not identify a particular step taken in reliance on that belief that created prejudice ([37]–[38]). Ground 2 failed ([39]).
For ground 3, the court found an error but held it did not justify allowing the appeal. Under r 742(2)(a), if reasons are requested, a review application must be filed within 14 days after the party receives the reasons. The 14-day period after receipt of the certificate applies under r 742(2)(b) if reasons were not requested ([42]). Mr Amos had requested reasons and had not received them when he filed his review application. The primary judge had therefore applied the wrong paragraph ([42]).
The decisive question became whether the error caused substantial injustice. The record showed that Mr Amos received draft certificates in June 2016, asserted that he expected a further opportunity to object, and raised concerns with the assessor ([47]–[49]). But there was no evidence that he raised further objections during the period before the final certificates were filed. Counsel accepted that nothing prevented him from doing so ([52]). Nor did he identify further objections when he eventually sought review in November 2024 ([53]). The court concluded that the alleged denial of natural justice was not made out and that the delayed failure to obtain reasons did not provide a basis to set aside the certificates or costs orders ([57]–[59]).
The judgment addresses the interaction between several procedural rules rather than announcing a broad change to enforcement law. Before this appeal, Amos v Wiltshire had described an enforcement-warrant application as an incidental proceeding connected to the principal proceeding, in the context of a transitional provision affecting rights of appeal ([15]–[19]). Mr Amos sought to apply that reasoning to the inactivity rule in r 389(2).
The Court of Appeal explained why the result in Amos v Wiltshire did not determine the construction of r 389(2). The CPA definition may apply where its use is consistent with the particular rule and surrounding context. But in this instance, reading “proceeding” broadly enough to bring enforcement proceedings within r 389(2) would conflict with the specific six-year period in r 799(1). The court therefore held that r 389(2) did not impose a two-year leave requirement on starting enforcement proceedings within the period addressed by r 799(1) ([20]–[24]).
The decision does not remove all judicial oversight of delay after an enforcement warrant has been issued. Cooper J noted that warrants last for a year and can be renewed for periods of up to a year, with no fixed limit on the number of renewals. The court may refuse renewal in a case of unreasonable or unexplained delay ([25]). That observation concerns renewal, not an automatic expiry or a general rule that delayed enforcement must be restrained.
The costs-review ruling also clarifies the distinction between r 742(2)(a) and (b): requesting reasons changes the event from which the 14-day review period runs. The judgment does not state that a party can wait indefinitely without consequence, or that an error about the applicable time limit automatically invalidates an assessment. The court separately examined whether the asserted grounds and the party’s conduct justified the requested relief ([42]–[59]).
At [22], Cooper J said the conflict created by applying the CPA definition meant the context required that the definition not bring enforcement proceedings within r 389(2). In plain English, a general definition cannot be used in a way that undermines the specific enforcement timetable in the rules.
At [23], the court explained that a specific rule may prevail over a general rule dealing with the same subject. Here, the six-year rule for starting enforcement proceedings was specific; the two-year inactivity rule was general. The court’s construction preserved the work of both rules.
At [25], the court stated that unreasonable or unexplained delay might lead a court to refuse a warrant renewal. This is a caution about the renewal discretion, not a conclusion that the warrant in this case had to be refused or that every delay justifies refusal.
At [34], the court rejected the argument that the primary judge had improperly limited the kinds of circumstances in which a sanction could be imposed. The primary judge’s reference to trial-related prejudice was treated as identifying a relevant distinction, not as a closed category.
At [37]–[38], the court distinguished a person’s belief that enforcement had been abandoned from demonstrated prejudice caused by that belief. Mr Amos’ evidence described surprise and his understanding of the position, but did not identify a concrete change of position that would establish real prejudice.
At [42], the court expressly found that the primary judge had applied the wrong part of r 742(2). Where reasons were requested, the rule measured time from receipt of the reasons, not receipt of the certificate. The court nevertheless considered separately whether that error had caused substantial injustice.
The ruling is most directly relevant where an enforcement creditor seeks to start enforcement proceedings within the six-year period in UCPR r 799(1), and the debtor argues that more than two years of inactivity in the principal proceeding means leave is required under r 389(2). The judgment rejects that construction of the rules. The analysis depends on the conflict between the general inactivity rule and the specific rule governing the commencement of enforcement proceedings ([20]–[24]).
The decision is also relevant to arguments that delay in pursuing an enforcement warrant should result in a sanction under r 5(4). It shows that the court considers the circumstances, the nature of the delay, and evidence of prejudice. A bare assertion of surprise or a belief that enforcement had been abandoned was insufficient on the evidence in this case ([34]–[39]). The judgment also identifies renewal of an enforcement warrant as a point at which unreasonable or unexplained delay might be considered ([25]).
For costs-assessment reviews, the decision applies where a party has requested reasons for decisions included in a costs certificate. In that situation, the relevant 14-day period under r 742(2)(a) runs from receipt of the reasons. The judgment also illustrates that an error in selecting the applicable time limit does not itself determine whether the certificates or resulting orders should be set aside. The party’s opportunities to object, conduct during the assessment, and the substance of the asserted grounds remain relevant to whether the error caused substantial injustice ([42]–[59]).
The supplied judgment does not cite any later court decision applying or interpreting Amos v Commissioner of State Revenue. It was delivered on 16 September 2025, and the material provided contains no subsequent judicial treatment. No conclusion about how later courts have treated this decision can be drawn from this source alone.
The judgment does identify earlier authorities relevant to its reasoning. It considered Amos v Wiltshire when addressing whether an enforcement-warrant application could be treated as part of a broader proceeding, but distinguished the statutory context and explained why that case did not control the construction of r 389(2) ([15]–[24]). It relied on Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd and Sedgwick Australia Pty Ltd v JLOC Super Pty Ltd in addressing whether an error caused substantial injustice ([43]). It also noted that the primary judge had distinguished Basha v Basha, Hood v Queensland and Quinlan v Rothwell because those cases involved delay in progressing an action to trial ([29]).
The judgment does not define when delay in renewing an enforcement warrant becomes “unreasonable or unexplained”. It says such delay might support refusal of renewal, but does not set out a test, a list of factors, or a time threshold ([25]). Those questions remain dependent on the circumstances of a later case and the material before the court.
The decision also does not determine the full range of sanctions available under r 5(4) for delay in enforcement. It considers the proposed restraint on enforcing the costs orders and finds no basis for a sanction on the facts. Its assessment of prejudice is tied to the evidence Mr Amos provided; it does not establish that delay can never cause relevant prejudice outside the trial context ([27]–[39]).
On costs assessments, the judgment does not decide whether or when a party may be required to pursue a costs assessor for reasons or seek a court order compelling reasons. It records that Mr Amos could have taken further steps but did not do so, and assesses that conduct when deciding whether the grounds justified setting aside the certificates and orders ([55]–[58]). Nor does the decision establish that every failure to provide reasons is harmless. The result turned on the procedural history, the available opportunities to object, and the absence of a demonstrated basis for the requested relief.
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Amos v Commissioner of State Revenue [2025] QCA 174
PARTIES: EDWARD AMOS / (appellant) / v / COMMISSIONER OF STATE REVENUE / (respondent)
FILE NO/S: Appeal No 1884 of 2025 / SC No 4457 of 2013
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: Supreme Court at Brisbane – [2025] QSC 76 (Smith J)
DELIVERED ON: 16 September 2025
DELIVERED AT: Brisbane
HEARING DATE: 21 August 2025
JUDGES: Mullins P and Doyle JA and Cooper J
ORDER: Appeal dismissed with costs.
CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – EXECUTION AGAINST PROPERTY – WARRANTS OF SEIZURE AND SALE – PROCEDURE – OTHER CASES – where the respondent applied for an enforcement warrant under the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) for the seizure and sale of properties owned by the appellant – where the respondent applied for declarations that an enforcement officer may seize and sell properties in execution of the enforcement warrant – where the appellant applied to set aside the enforcement warrant on the basis that r 389(2) of the UCPR was not complied with – where the primary judge held that r 389(2) of the UCPR did not apply to enforcement proceedings under the UCPR – whether r 389(2) of the UCPR applies to enforcement proceedings / PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – OVERRIDING PURPOSE OF AND OBLIGATIONS UNDER THE RULES OR ACTS REGULATING CIVIL PROCEEDINGS – where the appellant was ordered to pay the respondent’s costs – where those costs were assessed by a costs assessor – where the court ordered the appellant to pay those costs after the costs assessor filed certificates of assessment in relation to those costs – where r 5(4) of the UCPR provides that the court may impose appropriate sanctions if a party does not comply with the UCPR or an order of the court – where the appellant submitted that the court should restrain the enforcement of the costs orders under r 5(4) in circumstances where there was said to be delay by the Commissioner in enforcing the warrant – where the primary judge rejected that submission – whether the primary judge erred in not imposing a sanction under r 5(4) / PROCEDURE – COSTS – TAXATION AND OTHER FORMS OF ASSESSMENT – APPEAL, REVIEW OR REFERENCE – PROCEDURE AND EVIDENCE – TIME AND EXTENSION THEREOF – where the costs assessor filed certificates of assessment of costs in April and May 2017 – where, in November 2024, the appellant applied for a review of those assessments of costs – where the appellant did not raise any objections to the costs assessments in the 10 months between receiving the draft certificates of assessment and the filing of those certificates – where the primary judge held that the appellant’s application to review the certificates of assessment was outside the time required under r 742(2) of the UCPR – whether the primary judge erred in holding that r 742(2)(b) of the UCPR applied to the appellant’s application for a review of the assessment of costs – whether, if the primary judge did so err, the order of the primary judge should be set aside / Civil Proceedings Act 2011 (Qld), s 91, sch 1 / Uniform Civil Procedure Rules 1999 (Qld), r 4, r 5, r 371, r 389, r 717, r 720, r 738, r 742, r 819, r 820, r 821 / Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd (2021) 9 QR 141; [2021] QCA 198, followed / Amos v Wiltshire [2019] 2 Qd R 232; [2018] QCA 208, considered / Sedgwick Australia Pty Ltd v JLOC Super Pty Ltd [2024] QCA 218, followed
COUNSEL: P G Jeffery for the appellant / D P de Jersey KC for the respondent
SOLICITORS: Beaudesert Legal for the appellant / C E Christensen, Crown Solicitor for the respondent
MULLINS P: I agree with Cooper J.
DOYLE JA: I have read and agree with the reasons for judgment of Cooper J and with the order proposed by his Honour.
COOPER J: On 12 June 2014, the respondent (Commissioner) was granted summary judgment for part of a claim against the appellant (Mr Amos) to recover unpaid land tax. Mr Amos was ordered to pay the Commissioner’s costs of the summary judgment application. Those costs were subsequently assessed by a costs assessor.
On 19 May 2015, after Mr Amos paid the summary judgment sum and interest, the parties consented to orders which dismissed the balance of the Commissioner’s claim against Mr Amos, but which required that Mr Amos pay the Commissioner’s costs of the proceedings in an amount to be agreed or assessed. On 21 May 2015, orders were made on an application relating to the assessment of the Commissioner’s costs of the summary judgment application, including an order that Mr Amos pay the Commissioner’s costs of that further application. The costs which Mr Amos was ordered to pay on 19 May 2015 and 21 May 2015 were subsequently assessed by the same costs assessor.
The costs assessor filed two certificates of assessment (Certificates of Assessment); the first was filed on 28 April 2017 and set out the assessed amount of the costs which Mr Amos had been ordered to pay on 19 May 2015 and 21 May 2015; the second was filed on 31 May 2017 and set out the assessed amount of the costs which Mr Amos had been ordered to pay on 12 June 2014. After the Certificates of Assessment were filed the court made orders on 23 May 2017 and 31 May 2017 (Costs Orders) requiring that Mr Amos pay the certified amount of costs.1 Mr Amos is liable to pay a total of $122,464.83 under the Costs Orders. That amount remains unpaid.
In August 2017, the Commissioner applied for an enforcement warrant under Ch 19 Pt 3 of the UCPR, authorising the seizure and sale of properties owned by Mr Amos. That warrant was issued but has not been executed. Since its issue, the Commissioner has applied for and been granted renewals of the warrant pursuant to r 821(1) of the UCPR.
In April 2025, the primary judge determined three applications concerning the enforcement warrant and the Costs Orders which the Commissioner seeks to enforce against Mr Amos.
The Commissioner applied for declarations that the enforcement officer may seize and sell various properties in execution of the enforcement warrant.
In response, Mr Amos filed two applications. The first application sought to have the enforcement warrant set aside under r 819 of the UCPR. The second application sought a review of the Certificates of Assessment and orders setting aside those certificates and the Costs Orders under r 742(6)(b) and (c) of the UCPR.
Ground 1
Rule 389(2) of the UCPR provides that in circumstances where no step has been taken in a proceeding for two years from the time the last step was taken, a party may not take a new step without the order of the court.
The primary judge rejected Mr Amos’ argument that r 389(2) applies to enforcement proceedings brought under chapter 19 of the UCPR. In reaching that conclusion, his Honour distinguished the expression “enforcement proceedings” from a “proceeding” referred to in r 389(2), reasoning that a proceeding referred to in r 389(2) is the same as a proceeding referred to in r 8. The primary judge considered enforcement proceedings to be a procedure that a successful party might use to recover money after the proceeding, as referred to in rr 8 and 389 (among other rules) has ended.
On this appeal, Mr Amos submits that there is nothing in the words used in r 389(2) which supports a construction which would limit the application of the rule to a proceeding in which judgment has not yet been given. Further, he argues that the construction adopted by the primary judge is inconsistent with the decision of this Court in Amos v Wiltshire.3
An issue which arose for consideration in Amos v Wiltshire was whether leave was required under s 118 of the District Court of Queensland Act 1967 (Qld) to appeal an order that an enforcement warrant be amended. The enforcement warrant in that case misstated the amount of daily interest. The respondent, being the party in whose favour the warrant was issued, had applied to amend the warrant. By cross-application, the applicant sought to have the warrant set aside or stayed. The District Court ordered that the warrant be amended and refused to stay its enforcement.
The circumstances in which a party dissatisfied with a judgment of the District Court may appeal as of right are set out in s 118(2). If the judgment sought to be appealed does not fall within s 118(2) then leave to appeal is required under s 118(3). The issue of leave in Amos v Wiltshire was complicated by the fact that s 118(2) had been amended in 2010. Prior to those amendments, appeal as of right under s 118(2) only applied to a final judgment of the District Court. By amendments made in 2010, the scope of appeal as of right under s 118(2) was expanded to include appeals from interlocutory judgments, however a transitional provision enacted at the time of those amendments provided that the amended form of s 118(2) only applied to “actions, matters or proceedings” commenced after the commencement of the amending legislation. The District Court proceeding in which the money judgment the subject of the enforcement warrant was made was commenced in 2009, before the amended form of s 118(2) took effect.
“An application for an enforcement warrant under r 817 is a mechanism by which the order in the principal proceeding can be enforced. It is an incidental proceeding to the principal proceeding and not separate to it. This accords with the definition of ‘proceeding’ in the Civil Proceedings Act 2011 where proceeding means:
‘a proceeding in a court (whether or not between parties), and includes–
(a)an incidental proceeding in the course of, or in connection with, a proceeding; and
(b)an appeal or stated case.’”
As Brown J observed in a footnote to that paragraph, and as Mr Amos relies on in the present appeal, r 4(2) of the UCPR provides that words and expressions used in the Civil Proceedings Act 2011 (Qld) (CPA) have the same meaning in the UCPR as they have in the CPA. Mr Amos submits that when the CPA definition of “proceeding” is applied to the word “proceeding” in r 389(2) it is clear from the reasoning in Amos v Wiltshire that the rule applies to enforcement proceedings.
I accept that applying the CPA definition of some words and expressions to the UCPR will facilitate the effective operation of the rules to which those meanings are applied. An example can be seen in Amos v Wiltshire,5 where Brown J applied the CPA definition of “proceeding” to r 371(1) of the UCPR,6 finding that an application for an enforcement warrant came within the operation of that rule. The same cannot be said, however, if the CPA meaning of “proceeding” is applied to r 389(2), at least to the extent that this would have the effect of bringing enforcement proceedings within the operation of r 389(2). That is because r 799(1) provides that “[a]n enforcement creditor may start enforcement proceedings without leave at any time within 6 years after the day the money order was made.” An enforcement creditor who waits until shortly before the expiry of the six-year period provided for in r 799(1) is permitted to start enforcement proceedings without leave even though that party might not have (and likely will not have) taken a step in the principal proceeding for a period of more than two years. If the CPA definition of “proceeding” is applied to r 389(2) such that enforcement proceedings come within the operations of that rule there would be a conflict between r 799(1) and r 389(2) as to the circumstances in which an enforcement creditor would require leave to start enforcement proceedings.
There are at least two answers to this apparent conflict.
The first answer is found in r 4(3) of the UCPR, which provides that r 4(2) will not apply to attribute the CPA meanings of words and expressions to the UCPR “to the extent that the context or subject matter otherwise indicates or requires.” The conflict that would arise if the CPA meaning of “proceeding” is applied to r 389(2) means that the relevant context requires that not occur, at least to the extent that this would have the effect of bringing enforcement proceedings within the operation of r 389(2).
The second answer is found in the proposition that if apparently inconsistent statutory provisions cannot be construed in such a way that the apparent inconsistency disappears, one method of resolving the inconsistency is to subordinate the general provision to a more specific one dealing with the same subject matter. The construction propounded by Mr Amos does not accord with this longstanding principle. If the CPA definition of “proceeding” is applied to r 389(2) so that an enforcement creditor would require leave to start enforcement proceedings if more than two years (but less than six years) had passed without a step being taken in the principal proceeding, r 799(1) would be deprived of its effect; r 389(2), the general rule, would override r 799(1), the rule directed specifically to the subject of starting enforcement proceedings without leave.
Ground 2
Rule 5 imposes obligations on the parties to a proceeding as well as the court. Each party to a proceeding impliedly undertakes to the court and to the other parties to proceed in an expeditious way and is therefore subject to a corresponding obligation: r 5(3). The courts are to apply the rules with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of the UCPR, that being to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense: rr 5(1) and (2). If a party fails to comply with the UCPR or an order of the court, the court may impose appropriate sanctions on that party: r 5(4).
On the hearing before the primary judge, Mr Amos submitted that the court should impose sanctions on the Commissioner under r 5(4) by restraining the enforcement of the Costs Orders in circumstances where there had been lengthy and unexplained delay by the Commissioner.
The primary judge rejected that submission, observing that the authorities which Mr Amos relied on10 could be distinguished because they involved delay in the prosecution of an action before trial. His Honour expressly found that in the present case the court was not concerned with prejudice that might be caused by the loss of evidence or lost memories because of delay in progressing an action to trial.
The primary judge also had regard to the fact that, in 2018, the Commissioner had become aware that Mr Amos claimed to hold some of the relevant properties on trust and that Martin J (as his Honour was then) had determined in separate proceedings that those properties were held on trust and therefore could not be sold. Nevertheless, the Commissioner continued to renew the enforcement warrant. Further, the Commissioner sent a letter of demand to Mr Amos in 2020.
In those circumstances, the primary judge concluded that it was not appropriate to exercise the discretion to impose a sanction under r 5(4).
Under this ground of appeal, Mr Amos submits the primary judge erred in two ways.
First, Mr Amos argues that the primary judge limited his consideration of circumstances which should attract a sanction to cases of a particular type; that is, cases where one party is prejudiced by another party’s delay in progressing an action to trial where the delay leads to the loss of evidence and witnesses’ memories fading. On that argument, the primary judge improperly fettered his discretion because there is nothing in the terms of r 5 which would warrant such a limitation. By fettering his discretion in the manner alleged, the primary judge failed to consider other categories of case in which it might be appropriate for the court to impose a sanction.
This argument is without substance. It is clear from the primary judge’s reasons that, in referring to prejudice that might arise in cases of delay in the progress of an action to trial, his Honour did no more than identify a difference between that type of case and the present case. That difference was plainly a relevant matter for the primary judge to consider in exercising the discretion in the circumstances of the present case. The fact that the primary judge identified and considered that difference does not indicate that he approached the exercise of the discretion on the basis that the court should only impose a sanction in cases involving delay before trial. After identifying that relevant difference, his Honour proceeded to identify other relevant matters and concluded that the circumstances of the present case did not justify the imposition of a sanction under r 5. By following that process of reasoning, the primary judge did not fetter his discretion in any way.
Ground 3
The grounds on which Mr Amos sought a review of the Certificates of Assessment, and orders setting aside those certificates and the Costs Orders, were that:the costs assessor did not comply with his obligation under r 738(1) of the UCPR to provide reasons for dismissing preliminary objections made by Mr Amos; andby not allowing Mr Amos an opportunity to make further objections to the Commissioner’s costs after dismissing the preliminary objections, the costs assessor did not carry out the assessments by a procedure consistent with the rules of natural justice as required by r 720(2)(b) of the UCPR.
The primary judge addressed these grounds, concluding that the costs assessor’s failure to provide reasons for dismissing the preliminary objections did not prevent Mr Amos from applying for a review of the Certificates of Assessment at an earlier time, and that Mr Amos was accorded procedural fairness at the time the costs assessor issued draft certificates of assessment. However, his Honour ultimately dismissed the application because he considered that r 742(2) required that it be filed within 14 days after Mr Amos received the Certificates of Assessment. Mr Amos did not file the application until almost eight years after that period had expired. Consequently, his Honour concluded that the application was filed out of time and declined to exercise his discretion to extend the time for filing.
The primary judge’s conclusion that the application was filed out of time was incorrect. Rule 742(2)(a) provides that, if a party requests reasons for any decision included in a costs assessor’s certificate of assessment, an application for review must be filed within 14 days after the party receives the costs assessor’s reasons. The time limit identified by the primary judge, being 14 days after a party receives the certificate of assessment, only applies if the party has not requested reasons from the costs assessor: r 742(2)(b). The evidence before the primary judge established that Mr Amos had requested that the costs assessor provide reasons for his decision to dismiss Mr Amos’ preliminary objections (among other matters). Mr Amos had not received those reasons by the time he filed the application. In fact, by that stage the costs assessor had informed Mr Amos’ solicitors that, because he no longer had his file for the costs assessments which would have a record of the reasons for his decisions, he was unable to provide reasons in response to Mr Amos’ request.
Although Mr Amos has established error in the primary judge’s decision to dismiss the application to set aside the Certificates of Assessment and the Costs Orders, I am not persuaded that the error warrants allowing the appeal against that order. That is because, having considered Mr Amos’ own conduct, I have concluded that the grounds he relied on in support of the application does not provide a basis to set aside the Certificates of Assessment or the Costs Orders. Accordingly, the error made by the primary judge in dismissing the application has not caused substantial injustice to Mr Amos. I turn then to consider the course of the costs assessments and subsequent events.
Conclusion
See r 740 of the Uniform Civil Procedure Rules 1999 (UCPR). ↩
Although Mr Amos relied on four arguments on the hearing before the primary judge, he only appeals against the primary judge’s rejection of three of those arguments. ↩
[2019] 2 Qd R 232. ↩
[2019] 2 Qd R 232, 240 [28] (citations omitted). ↩
[2019] 2 Qd R 232, 243 [44]. ↩
UCPR r 371(1) provides that a failure to comply with the UCPR is an irregularity and does not render a proceeding, a document, step taken or order made in a proceeding, a nullity. ↩
Perry Herzfeld and Thomas Prince, Interpretation (Law Book Company, 3rd ed, 2024) [5.220] and the authorities cited therein. ↩
CPA s 91. See also UCPR r 820(1)(b). ↩
UCPR r 821(1). ↩
Basha v Basha [2010] QCA 123, [24]; Hood v Queensland [2002] QSC 169, [76]; Quinlan v Rothwell [2008] QSC 143, [53]. ↩
Affidavit sworn 1 August 2024, [3]. ↩
(2021) 9 QR 141, 149 [12]-[13]; [2024] QCA 218, [11].
Amos
Commissioner of State Revenue [2025] QCA 174
Appeal dismissed with the appellant to pay the respondent’s costs of the appeal.
The primary judge made the declarations sought by the Commissioner and dismissed both of Mr Amos’ applications. By this appeal, Mr Amos challenges that outcome.2 He raises three grounds of appeal:the primary judge erred in finding that, because r 389(2) of the UCPR does not apply to enforcement proceedings, the Commissioner did not require leave to prosecute the enforcement proceeding despite no step having been taken for more than two years (ground 1);the primary judge erred in deciding not to impose a sanction under r 5(4) of the UCPR to restrain the Commissioner from proceeding further with the enforcement proceeding despite the failure to proceed in an expeditious way (ground 2);the primary judge erred in finding that Mr Amos required an extension of time to apply for a review of the Certificates of Assessment as a consequence of r 742(2) of the UCPR, even though Mr Amos had requested reasons for the costs assessor’s decision under r 738(1) of the UCPR and had not received those reasons by the time he applied for a review of the Certificates of Assessment (ground 3).
For reasons which follow, the appeal should be dismissed.
In that context, there was a dispute in Amos v Wiltshire as to whether the application to amend the enforcement warrant was separate from the principal proceeding in which the money judgment had been made. The applicant argued that the 2010 amendments applied because the application to amend the enforcement warrant was a separate proceeding which fell within the expression “actions, matters or proceedings” and that proceeding was commenced after the amending legislation took effect. The respondent argued that the phrase “actions, matters or proceedings” related to what is generically referred to as a proceeding and included the original District Court proceeding commenced in 2009. On that basis, the respondent submitted the amended form of s 118(2) did not apply and the applicant required leave to appeal the interlocutory order of the District Court.
Brown J (as her Honour was then) accepted the respondent’s argument and held that, on the correct construction of the amending legislation, because the principal proceeding in respect of which the enforcement warrant was obtained was commenced in 2009, the 2010 amendments did not apply. It was in that context that her Honour made the following statement, upon which Mr Amos relies in the present appeal:4
For these reasons, I do not accept Mr Amos’ submission that r 389(2) should be construed as applying to enforcement proceedings.
This does not mean that a court cannot address delay by an enforcement creditor after enforcement proceedings have started. An enforcement warrant is issued for a period of one year.8 Before an enforcement warrant ends, the enforcement creditor can apply to the court for the renewal of the warrant for a further period of not more than one year.9 There is no limit to the number of times that an enforcement warrant can be renewed; however, in cases of unreasonable or unexplained delay the court might refuse to renew the warrant.
It follows that Mr Amos has not demonstrated error by the primary judge in concluding that r 389(2) does not apply to enforcement proceedings. Ground 1 fails.
Secondly, Mr Amos submits that the primary judge mistook the facts when he found that the Commissioner sent a letter of demand in 2020. Although there was evidence that the Commissioner did send a letter of demand dated 28 July 2020, Mr Amos submits this letter demanded payment of stamp duty and penalties, not the amounts payable under the Costs Orders, and therefore was not relevant to the exercise of discretion under r 5(4).
The letter of demand referred to Mr Amos having produced declarations of trust relating to four properties and stated that, because those declarations had not been stamped, the Commissioner had assessed the relevant duty under the Stamp Act 1894 (Qld) and the Duties Act 2001 (Qld) and issued reassessment notices for payment of the stamp duty and penalties. Although the letter does not refer to the amount Mr Amos owed under the Costs Orders, its connection to the enforcement proceedings is clear when regard is had to the context in which it was sent. That context was that Mr Amos sought to rely on the declarations of trust as a basis for resisting the enforcement of the Costs Orders. The letter of demand was sent as a response to the position which Mr Amos had taken. It was an indication that the Commissioner had not abandoned the enforcement of the Costs Orders. On that basis, I accept the Commissioner’s submission that the letter of demand related to the enforcement of the Costs Orders and, consequently, was relevant to the exercise of the discretion under r 5(4). The primary judge would have been aware of this context because the effect of the declarations of trust was a matter argued on the hearing of the applications below and determined by his Honour against Mr Amos (but which is not the subject of appeal). In those circumstances, I am not persuaded that the primary judge mistook the facts or had regard to an irrelevant consideration.
Accordingly, Mr Amos has not established that the primary judge’s discretion miscarried. Even if that had been established, and it fell to this Court to exercise the discretion afresh, I would not impose any sanction on the Commissioner. That is because I am not satisfied that Mr Amos suffered any real prejudice by reason of delay on the part of the Commissioner. The extent of the evidence as to prejudice was a statement in one of Mr Amos’ affidavits that he was surprised when he was served with the Commissioner’s application for declarations because, after a long period of inactivity, he believed all issues arising out of the proceeding (which I take to include the Costs Orders) had been finalised or had been abandoned by the Commissioner.11 Mr Amos stated that it was for this reason he did not pursue the costs assessor for his reasons after 4 September 2022 (a matter addressed further below in considering ground 3). Beyond that, Mr Amos did not depose to having taken any particular step in organising his affairs, on the basis of his belief that the Commissioner had abandoned the enforcement of the Costs Orders, which would result in him suffering prejudice if the Commissioner is now permitted to proceed to enforce those orders by executing the enforcement warrant.
Further, Mr Amos’ evidence ignores the fact that court orders had been made against him. If he had wished to avoid uncertainty as to whether, or at what time, the Commissioner might seize and sell any of his properties to enforce the Costs Orders, all he had to do was pay the amounts as ordered. Mr Amos’ submission that he always intended to seek the review of the Certificates of Assessment which founded the Costs Orders is addressed in my consideration of ground 3 below. For present purposes, it is sufficient to note that, from the time the Certificates of Assessment were filed, it was open to Mr Amos to apply for a review of those certificates and to prosecute any challenge which he wished to make to items allowed by the costs assessor. For approximately seven years, he elected not to do so. In those circumstances, I do not consider that the evidence relied on by Mr Amos demonstrates prejudice arising from delay in the enforcement of the Costs Orders.
For these reasons, Mr Amos has not demonstrated that the primary judge erred in refusing to impose a sanction on the Commissioner pursuant to r 5(4). Ground 2 fails.
The Commissioner served two costs statements which were the subject of assessment.
The first costs statement, which claimed the costs the subject of the 12 June 2014 order, was served on 24 September 2014. Mr Amos applied for an assessment of the firsts costs statement and filed a preliminary notice of objection on 21 October 2014. On 7 May 2015, Mr Amos filed amended preliminary notice of objection to the first costs statement. The costs assessor was appointed to assess these costs by the order made on 21 May 2015 (referred to at [4] above).
The second costs statement, which claimed the costs the subject of the 19 May 2015 and 21 May 2015 orders, was served on 23 September 2015. Mr Amos filed a preliminary notice of objection on 21 October 2015 and the Commissioner engaged the same costs assessor to assess the costs. No order was made at that stage formally appointing the costs assessor to assess the costs the subject of the 19 May 2015 and 21 May 2015 orders.
On 28 June 2016, the costs assessor sent a letter to the parties enclosing draft certificates of assessment and schedules showing the amounts allowed and disallowed on assessment in respect of each of the costs statements. The covering letter informed the parties that, with one exception, the costs assessor had not accepted Mr Amos’ preliminary objections. It also stated that the costs assessor would allow seven days for the parties to make submissions as to the costs of the assessment, but that in the event he received no further submissions he would allow those costs in the amount set out in the draft certificates.
One day later, on 29 June 2016, Mr Amos’ solicitors wrote to the costs assessor, asserting (among other things) that: the draft assessments were premature for a variety of reasons, including that the costs assessor had not delivered reasons as to why he did not accept Mr Amos’ preliminary objections; Mr Amos expected that he would be afforded an opportunity to object, if necessary, to the quantum of the Commissioner’s costs after the determination of his preliminary objections; and, contrary to this expectation, Mr Amos had not been afforded any opportunity to object to the quantum of the Commissioner’s costs. The letter stated that the costs assessor should refer the issues raised by Mr Amos to the court for determination or directions under r 717 of the UCPR and sought confirmation from the costs assessor that, in any event, he would refrain from issuing the certificates of assessment in final form.
On 4 July 2016, Mr Amos filed an application seeking an order that the costs assessor be restrained from issuing certificates of assessment until the issues raised in the letter from Mr Amos’ solicitors dated 29 June 2016 had been decided by the costs assessor or the court. That application was dismissed on 16 September 2016. Although the court file does not contain a copy of any reasons for that decision, Mr Amos deposed in an affidavit read on the hearing before the primary judge that the application was dismissed on the basis it was premature, because the costs assessor had not yet filed the certificates of assessment and that, once he had done so, Mr Amos could apply for a review under r 742 of the UCPR.13
On 20 January 2017, Mr Amos filed an application for an order appointing a different person to assess the costs claimed in the second costs statement (in circumstances where the costs assessor had not been formally appointed by court order but had, to Mr Amos’ knowledge, undertaken an assessment and provided a draft certificate of assessment in relation to those costs). In response, the Commissioner filed an application seeking an order formally appointing the costs assessor to assess the costs the subject of the 19 May 2015 and 21 May 2015 orders. Mr Amos’ application was dismissed on 29 March 2017 and an order was made appointing the costs assessor to assess the costs claimed in the second costs statement.
As already observed, the costs assessor filed the Certificates of Assessment on 28 April 2017 and 31 May 2017.
There is no evidence that, during the period between Mr Amos receiving the draft certificates of assessment on 28 June 2016 and the filing of the Certificates of Assessment some ten months or more later, he raised any further objections to either of the costs statements or requested that the costs assessor consider any further objections before finalising the assessments. As was frankly accepted by Mr Jeffery, who appeared as counsel for Mr Amos on the appeal, there was nothing preventing Mr Amos from writing to the costs assessor and raising whatever further objections he wished to make in respect of the costs statements before the Certificates of Assessment were finalised and filed.
There is also no dispute that, despite Mr Amos’ understanding of the reason his application filed on 4 July 2016 was dismissed (see [49] above), he did not seek to have the Certificates of Assessment reviewed until 19 November 2024. Even when he applied to the primary judge to have the Certificates of Assessment reviewed, Mr Amos did not identify any further objections that he wished to raise against any of the costs claimed by the Commissioner.
Returning to the events following the filing of the Certificates of Assessment, on 17 May 2017 Mr Amos’ solicitors wrote to the costs assessor requesting reasons for the assessments pursuant to r 738 of the UCPR. They sent further letters on 12 June 2017, 20 July 2018 and 18 December 2019 repeating the request for reasons. Mr Amos wrote to the costs assessor on 4 September 2022 making a further request for reasons. The costs assessor did not provide reasons in response to those requests. There is no evidence that he provided any response at all.
On 18 July 2024, after the Commissioner had filed the application for declaratory relief referred to at [8] above, Mr Amos’ solicitors wrote again to the costs assessor. That letter asserted the costs assessor was in breach of r 738(2) of the UCPR and stated that if he did not provide reasons within seven days, Mr Amos intended to apply for an order compelling him to provide his reasons. It was in response to that letter that the costs assessor stated that he was not able to provide reasons (see [42] above). During argument on the appeal, Mr Jeffery also frankly accepted that there was nothing preventing Mr Amos from bringing such an application after the costs assessor had not responded to the earlier requests for reasons.
Mr Jeffery accepted that it was open to Mr Amos take steps at an earlier time to raise and pursue complaints he had about the Commissioner’s costs, or the process by which those costs were assessed, but submitted there was no obligation to take such steps. Instead of taking those steps, Mr Amos chose (as Mr Jeffery described, with a degree of understatement) to “keep his powder dry” until late 2024. Accepting for the sake of argument that Mr Amos was not obliged to take steps at an earlier stage,14 his choice to conduct himself as he did is relevant to the assessment whether the grounds he relied on to set aside the Certificates of Assessment and the Costs Orders justified such relief.
As to the natural justice ground, Mr Amos’ argument is premised upon an assertion that the costs assessor did not allow him to make further objections to the Commissioner’s costs after dismissing the preliminary objections (see [40](b) above). That assertion is not borne out by the course of events described above. It was open to Mr Amos to identify whatever further objections he wished to make and seek to have the costs assessor consider those further objections, but he chose not to take that course. The costs assessor did not refuse any request by Mr Amos that he consider further objections. In those circumstances, I cannot see any basis on which Mr Amos could establish that he was not accorded natural justice in the conduct of the assessment.
As to the costs assessor’s failure to provide reasons, I cannot see how, in circumstances where Mr Amos chose not to apply for an order compelling the costs assessor to provide his reasons, and did not even raise the prospect of such an application with the costs assessor until the passage of time meant the costs assessor was not able to provide those reasons, Mr Amos should be entitled to rely on the absence of reasons as a basis to set aside the Certificates of Assessment or the Costs Orders.
It is for these reasons that I have concluded that the error made by the primary judge in dismissing Mr Amos’ application did not result in any substantial injustice. On that basis, ground 3 also fails.
Affidavit sworn 18 November 2024, [15]. ↩
Noting that Mr Amos was also under an obligation pursuant to r 5 of the UCPR to act expeditiously in raising any issues he wished to advance concerning the costs assessments. ↩