Averono & Anor v Mbuzi & Anor

SUPREME COURT OF QUEENSLAND

CITATION: Averono & Anor v Mbuzi & Anor [2007] QCA 174

PARTIES: MARCO ADAMO AVERONO and ANNABEL LOUISE AVERONO (respondents) v JOSIYAS ZIFNANA MBUZI and VAINESS BANDA MBUZI (applicants/appellants)

FILE NO/S: Appeal No 359 of 2007 / SC No 10869 of 2004

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 29 May 2007

DELIVERED AT: Brisbane

HEARING DATE: 21 May 2007

JUDGES: McMurdo P, Holmes JA and Fryberg J / Judgment of the Court

ORDER: Appeal dismissed with costs to be assessed

CATCHWORDS: PROCEDURE – COSTS – APPEALS AS TO COSTS – where appellants claimed judges had made wrong orders for costs – where primary judge making costs orders must give leave to appeal those orders – where leave not sought or obtained by appellants – whether the case fell under s 253 Supreme Court Act 1995 (Qld) – whether appeal incompetent / PROCEDURE – COSTS – APPEALS AS TO COSTS – where no valid reason given why the costs orders should be altered – where no evidence supporting grounds of appeal –whether even if regularly made, the appeal was without merit / Supreme Court Act 1995 (Qld), s 253 / Uniform Civil Procedure Rules 1999 (Qld), r 667 / Greig v Stramit Corporation Pty Ltd [2004] 2 Qd R 17, considered / MAM Mortgages Ltd (in liq) v Daskam Pty Ltd [2002] QCA 187; Appeal No 5364 of 2001, 31 May 2002, applied

COUNSEL: J Z Mbuzi appeared on his own behalf and on behalf of V B Mbuzi / R J Lynch for the respondent

SOLICITORS: J Z Mbuzi appeared on his own behalf and on behalf of V B Mbuzi / David Colwell & Company for the respondents

1. THE COURT: Mr Josiyas Zifnana Mbuzi represented himself and his wife, Vainess Banda Mbuzi, in this appeal. He has in recent years gained some experience in the Supreme Court of Queensland appearing on his own behalf in a dispute with his neighbours, Marco Adamo Averono and Annabel Louise Averono, the respondents to this appeal, over an easement: see Averono & Anor v Mbuzi & Anor.¹

2. On 15 February 2005 Muir J dealt with applications initiated by each of the parties. Muir J ordered that the Mbuzis' application filed on 4 February 2005 be dismissed and that the Mbuzis pay the Averonos' costs of and incidental to that application to be assessed on the standard basis. His Honour also ordered that, until the determination of the relief sought in the Averonos' amended originating application or earlier order, the Mbuzis not carry out or cause to be carried out any works on the land within two specified registered easements; further prevent, impede or restrict the ability of vehicles of any description to pass and re-pass over the said land and that they not interfere with or impede the Averonos whether by themselves, their servants or agents in repairing or improving the subject driveway or any part of it; further carry out or cause to be carried out any further works interfering with the drainage of the land within the said easements. His Honour ordered that the costs of and incidental to the Averonos' amended originating application and of the hearing in respect of it be reserved and adjourned the application to the "chambers list" to be heard on Wednesday, 2 March 2005.

3. The Mbuzis did not appeal from that order nor did they make an application under Uniform Civil Procedure Rules 1999 (Qld) ("UCPR") r 667 to vary or set aside the order.

4. The hearing of the adjourned application subsequently proceeded before Mullins J who ultimately ordered on 31 March 2005 that the interlocutory injunction ordered by Muir J on 15 February 2005 be discharged; that the Averonos' amending originating application be dismissed; that the applications filed on 1 March 2005 and 16 March 2005 be dismissed; that there be no order as to costs in respect of the hearings of 2 and 23 March 2005 and that the Mbuzis pay the Averonos' costs of the hearing on 15 February 2005 to be assessed.

5. The Mbuzis did not appeal from that order; nor did they make an application under UCPR r 667 to vary or set aside the order.

6. During the process of the assessment of the costs orders made by Muir J and Mullins J the Mbuzis became frustrated over what they perceived to be deliberate misleading of the deputy registrar by the respondents' lawyers as to the costs orders made, particularly the order of Mullins J. On 27 October 2006, before any concluded costs assessment, the Mbuzis filed applications for clarification of the orders of Muir J on 15 February 2005 and of Mullins J on 31 March 2005. Those applications did not proceed before Mullins J or Muir J but instead proceeded before an applications judge listed in that jurisdiction on 18 December 2006, Douglas J.

7. Douglas J correctly ascertained that the Mbuzis' applications before him were primarily to review Mullins J's costs order of 31 March 2005 which dealt with Muir J's order reserving the costs relating to the Averonos' originating amended application. Mr Mbuzi stated in this Court that he was disappointed that Muir J dismissed his application filed on 4 February 2005 with costs in his absence through illness but Mr Mbuzi did not place any material before Douglas J or this Court to throw doubt on the appropriateness of Muir J's costs order. Mr Mbuzi's primary concern at first instance and in this Court was Mullins J's costs order of 31 March 2005. Douglas J noted that Mullins J's orders were clear and unambiguous, although his Honour correctly acknowledged that an error had apparently emerged in the costs assessment process when the Averonos' lawyers mistakenly claimed their costs of appearing in the Supreme Court on 23 March 2005, contrary to the terms of the order of Mullins J of 31 March 2005. Douglas J rightly stated that this was a simple matter to clarify before the deputy registrar conducting the costs assessment and concluded that the Mbuzis' applications before him were therefore misconceived. His Honour dismissed the Mbuzis' applications with costs. Douglas J also struck out a paragraph from Mr Mbuzi's affidavit filed 4 December 2006 in which he stated his belief that the Averonos' lawyers had "engaged in deceptive and misleading conduct in order to have unjust enrichment for their clients".

8. The Mbuzis have filed a notice of appeal from the orders of Douglas J claiming:

"A. Error of Law;

B. Apprehended Bias;

C. Lack of Jurisdiction;

D. Lack of Integrity;

E. Judge's self contradictions."

9. They seek orders today allowing the appeal, setting aside the orders made by Douglas J with costs in their favour in this appeal and at first instance and "that the affidavit of Josiyas Mbuzi in support of the Primary Court's applications stands in its entirety".

10. Despite the grounds raised, Mr Mbuzi's written and oral submissions in this appeal make it reasonably clear that this appeal essentially relates only to costs orders of Trial Division judges of the Supreme Court of Queensland, particularly Mullins J's costs orders of 31 March 2005 and Douglas J's costs orders of 18 December 2006. Under s 253 Supreme Court Act 1995 (Qld) no order made by a Supreme Court judge as to costs only, which by law are left to the discretion of the judge, shall be subject to any appeal except by leave of the judge making such order. The Mbuzis have not obtained the leave of Douglas J or, for that matter, Mullins J or Muir J to appeal any costs order. That may well have the effect that the Mbuzis' purported appeal to this Court is incompetent and should be struck out with costs: see MAM Mortgages Ltd (in liq) v Daskam Pty Ltd.² The present matter is an excellent example of the category of case that s 253 is intended to filter before reaching this Court.

11. In any case, the Mbuzis' appeal to this Court, even if regularly made, is without merit. Mr Mbuzi claims his applications before Douglas J were brought under UCPR r 706. That is plainly wrong. The registrar did not refer the matter to the Supreme Court under UCPR r 706.

12. If the applications before Douglas J were applications under UCPR r 667 to vary or amend the earlier orders of Mullins J and Muir J, after about 20 months they were unreasonably and inexplicably stale but that would not necessarily be fatal to a meritorious application: Greig v Stramit Corporation Pty Ltd.³ However, Mr Mbuzi did not demonstrate to Douglas J nor to this Court any valid reason why the orders made by Mullins J or Muir J should be varied or altered. Those orders are, as Douglas J rightly recognised, clear and unambiguous. No doubt they will also be clear to the deputy registrar when the part-heard assessment of the costs subsequently resumes. Mr Mbuzi's distress at the Averonos' lawyers apparent inadvertent misleading of the deputy registrar about the order as to costs of the hearing of 23 March 2005 before Mullins J is understandable. But it does not justify the Mbuzis' applications to Douglas J which were misconceived. They remain misconceived whether or not Douglas J had struck out para 22 of Mr Mbuzi's affidavit of 4 December 2006. There is absolutely no evidence before this Court to support any of the grounds raised by Mr Mbuzi in his notice of appeal. The appeal should be dismissed with costs to be assessed.

ORDER: Appeal dismissed with costs to be assessed.

Footnotes

1. [2005] QCA 295; Appeal No 1254 of 2005, 16 August 2005; [2005] QSC 61; BS10869 of 2004, 31 March 2005 and [2005] QSC 6, 21 January 2005. ↩

2. [2002] QCA 187; Appeal No 5364 of 2001, 31 May 2002. ↩

3. [2004] 2 Qd R 17, 28, [47]. ↩