Hobelt v Gold Coast City Marina Pty Ltd [2025] QDC 167

1. The amount of $72,808.00 held in the Defendant's solicitors' Trust Account be released to the Defendant in partial satisfaction of the Judgment entered in consequence of paragraph [1(b)] above].[2]

1. The Defendant's costs of the Plaintiff's application filed 9 April 2024 and the Defendant's application filed 2 August 2024 be paid on the indemnity basis:

(a) as to the period 7 August 2023 to 3 July 2024[3] - by the Plaintiff and [the appellant's former solicitor] jointly, fixed in the amount of $31,929.30; and

(b) as to the period 8 July 2024 to 7 August 2024[4] - by the Plaintiff fixed in the amount of $18,939.60.

1. The Plaintiff's application filed 22 August 2024 is dismissed.
2. The Plaintiff pay the Defendant's costs of the Plaintiff's application filed 22 August 2024 and the Defendant's application filed 26 September 2024 on the indemnity basis:

(a) As to the period 8 August 2024 to 2 October 2024 fixed in the amount of $21,231.90.

1. The Plaintiff pay the Second Defendant, Trenton Gay's, costs of the proceeding on the standard basis as agreed between the parties or, failing agreement, as assessed."

• [2] The appellant submits that the respondents should be excluded from further participation in the appeal as they have "repeatedly breached orders and deadlines set by this court most recently on 11 July 2025."
• [3] There is no merit in the appellant's contention as the below chronology of the matter in this court demonstrates.
• [4] The Notice of Appeal was filed on 24 February 2025.[5] An outline of argument was filed by the appellant on 26 March 2025.[6] An application and a document headed "affidavit" was filed by the appellant on 10 April 2025 seeking a stay of the Acting Magistrate's orders.[7]
• [5] By consent, that application was dismissed on 10 April 2025, and the time for the respondents to file an outline of argument was extended to 4 June 2025.[8]
• [6] An outline of argument was not filed as required by 4 June 2025 such that there was a brief period of non-compliance before, on 11 June 2025, the respondents filed an application for security for costs.[9] The application was dated 5 June 2025, one day after the due date for the outline of argument.
• [7] On 25 June 2025, the appellant applied to the court for orders including that the respondents be barred from filing any further material including an outline of argument; that the respondents' defence be struck out; that judgment be entered in favour of the appellant in the terms sought in the Third Further Amended Statement of Claim and outline of argument filed 26 March 2025; and, in the alternative, that the matter be listed for final hearing without further input from the respondents.[10] An affidavit was filed in support of the application detailing that the respondents had not filed an outline of argument as required by the order of 10 April 2025.[11]
• [8] On 27 June 2025, her Honour Judge Balic made orders relating to security for costs and dismissed the appellant's application of 25 June 2025. She ordered that the time for the respondents to file an outline of argument in respect of the appellant's Notice of Appeal be extended to the date that is 14 days after the appellant gives notice to the respondents of his compliance with the security for costs order.
• [9] On 30 June 2025, the appellant filed an application to the court for leave to amend the Notice of Appeal in the form annexed to the affidavit in his name sworn on 30 June 2025. Further, that he be granted leave to file and rely upon further written submissions in the form annexed to the same affidavit and other ancillary orders.[12]
• [10] On 18 July 2025, the appellant's application was allowed. It was ordered:
  1. the appellant is granted leave to amend his Notice of Appeal in the form served on the respondents on 13 July 2025;
  2. the appellant is granted leave to file and rely on further written submissions in the form served on the respondents on 13 July 2025;
  3. the appellant is to file and serve the documents referred to in paragraphs 1 and 2 of this order within 7 days after the date of this order;
  4. the respondents are to file and serve an outline of argument within 14 days after the date on which the respondents are served with the documents referred to in paragraph 3 of this order.[13]
• [11] An Amended Notice of Appeal was filed by the appellant on 21 July 2025 as well as a document headed "submissions in support of appeal."[14]
• [12] The respondents filed an outline of argument on 4 August 2025. That was in compliance with the orders made on 18 July 2025.[15]
• [13] On 11 August 2025, the appellant filed a document headed "response to respondents' outline of argument."[16]

• [14] The grounds of appeal are nominated in the Amended Notice of Appeal as:
  1. failure to provide adequate reasons/inadequate or no reasons for key orders;
  2. procedural irregularity;
  3. failure to consider or address crucial evidence;
  4. bias or apparent bias; and
  5. error of law or jurisdiction.

• [15] Rule 374(5)(a) of the Uniform Civil Procedure Rules 1999 ("UCPR") provides that judgment may be set aside only on appeal.[17] In my view, r 783 is applicable.
• [16] I adopt what was stated by Muir DCJ (as her Honour then was) in Pullen & Anor v Lambert Wilcox Estate Agents Pty Ltd [2019] QDC 104 at [5]- [6] as to the nature of the appeal for appeals made pursuant to r 783:

"On appeal, this court may relevantly: draw inferences of fact from facts found by the magistrate, or from admitted facts or facts not disputed; order a new trial on such terms as it thinks just; order judgment to be entered for any party; and make any order on such terms as it thinks proper.

Rule 765(1) [made applicable by r 785] provides that an appeal under Chapter 18 of the UCPR is an appeal by way of rehearing. A rehearing involves a "real" review of the original record of proceedings below rather than a fresh hearing. The appeal judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions. This may mean overturning findings of primary facts made by a magistrate. In undertaking this task, the judge should afford respect to the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing witnesses. But an appeal court may interfere if the conclusion is "contrary to compelling inferences" in the case. An appeal court will not usually disturb findings of fact if the evidence is capable of supporting the conclusion. If this court concludes that an error has been shown such that the decision of the magistrate is wrong, the decision below should be corrected." (footnotes omitted)

• [17] The proceedings below had a protracted history. Given the grounds of appeal, and the orders made by the Court pursuant to r 374(5)(a), it is necessary to set out the history in some detail.
• [18] The appellant filed a Claim and Statement of Claim on 23 June 2021.[18] Only a month later, an Amended Claim and Statement of Claim was filed.[19] The appellant applied for default judgment[20] which was refused on 12 August 2021.[21] On 18 August 2021, the respondents filed a Notice of Intention to Defend,[22] and a Defence and Counterclaim.[23]
• [19] In its Counterclaim, the first respondent claimed the sum of $9,160.00 plus interest and costs and alleged that the appellant and the first respondent entered into a contract on 1 June 2021 which made the appellant liable to pay charges to the first respondent for the performance of "lifting services". The first respondent claimed that on 17 June 2021, the appellant provided notice to the first respondent that he wanted the vessel returned to the water on 19 June 2021 and, upon receiving this notice, the first respondent issued an invoice to the appellant. The first respondent claimed that the invoice of 17 June 2021 was payable by the appellant prior to the vessel being returned to the water.
• [20] The first respondent claimed that the appellant failed to pay the invoice and accordingly the vessel was not removed from the hardstand and continued to incur fees at a rate of $117 per day. The respondent further claimed, by virtue of the contract of 1 June 2021, the appellant was liable for payment of interest as a result of the appellant's failure to pay the invoice.
• [21] On 10 September 2021, solicitors came onto the record for the appellant and a Reply was filed.[24]
• [22] A Further Amended Claim and Statement of Claim were filed on 4 January 2022;[25] an application and affidavit in support to compel the respondents to produce the hardstand agreement for inspection was filed.[26] By consent, that application was dismissed.[27]
• [23] Following the respondents' solicitors sending a letter pursuant to r 444,[28] a Reply and Answer to the Counter Claim was filed on 11 August 2023,[29] as well as a Second Further Amended Statement of Claim.[30]
• [24] There was further correspondence between the parties between 21 August 2023 and 8 April 2024 including the respondents requesting Further and Better Particulars. On 27 October 2023, the appellant's then solicitor sent correspondence stating that the appellant would file a Third Further Amended Statement of Claim "mid next week" and attached a document headed "Further and Better Particulars". No Third Further Amended Statement of Claim as foreshadowed in the letter of 27 October 2023 was filed or provided.
• [25] Despite this, the appellant's solicitor sent a r 444 letter to the respondents' solicitors complaining that the respondents had not filed a Further Amended Defence in response to the Second Further Amended Statement of Claim sent to the respondents on or about 11 August 2023 and stated that the appellant would seek summary judgment on its Second Further Amended Statement of Claim.[31]
• [26] On 13 December 2023, the respondents' solicitors sent a rr 445 & 446 letter to the appellant stating that they had not filed a Further Amended Defence because they were waiting for the appellant to file a Third Further Amended Statement of Claim as foreshadowed in the letter of 27 October 2023. The respondents raised deficiencies in the particulars provided on 27 October 2023.[32]
• [27] On 15 December 2023, the appellant wrote to the respondents in relation to a request for a trial date.[33] Following further correspondence, on 18 December 2023, the respondents asked whether the appellant intended to make any amendment to his pleading or provide particulars as per the correspondence sent on 13 December 2023.
• [28] The respondents stated that the deficiencies in the pleadings and non-compliance with the UCPR to date made it "impossible for [the respondents] to certify that the matter is ready for trial" because they had not yet received the appellant's disclosure, nor did the respondents know "what case [the appellant] intends to propound at trial."[34]
• [29] There was further correspondence. On 9 April 2024, the appellant filed an application and supporting affidavit for orders including that the respondents file an amended defence within 14 days;[35] or, alternatively, that the respondents' signatures be dispensed with ("9 April 2024 application"). The 9 April 2024 application was not served until 17 June 2024.
• [30] On 12 April 2024, the respondents responded to a letter from the appellant dated 8 April 2024 foreshadowing that the appellant will seek an order that the respondents' signature be dispensed with,[36] with a r 445 letter detailing that the matter was not ready to be listed for trial because steps remained outstanding. These were nominated to "at least" include disclosure described in the List of Documents and for the respondents to file an Amended Defence to the Second Further Amended Statement of Claim served on 11 August 2023."[37]
• [31] A follow up r 444 letter was sent a month later, on 15 May 2024, detailing that the appellant had failed to effect disclosure, provide a satisfactory response to the request for Further and Better Particulars, and was causing undue delay and prejudice.[38] The letter required the appellant to take certain steps by 24 May 2024 including filing a Third Further Amended Statement of Claim which, amongst other things, addressed the deficiencies raised in the previous requests for Further and Better particulars.
• [32] On 18 June 2024, after being served with the 9 April 2024 application, the respondents wrote again stating, amongst other things, that a Third Further Amended Statement of Claim had not been filed as foreshadowed.[39]
• [33] On the same date, the appellant communicated with the respondents indicating that it did not intend to file a Third Further Amended Statement of Claim.[40] There was further correspondence including an undated letter sent by email from the respondents to the appellant on 20 June 2024 pursuant to r 446 in relation to the 9 April 2024 application. It sets out that unless the appellant agreed to the proposal the respondents would be seeking indemnity costs.[41]
• [34] I make it clear that all of the above communication from 10 September 2021 was between the appellant's solicitors and respondents' solicitors.
• [35] There was then communication between the respondents' solicitors and appellant's solicitors from 20 June 2024 where the appellant's solicitor indicated that he will be "advising [the appellant] I cannot continue to [represent] him, given that you have now made an allegation of ethical misconduct."[42]
• [36] On 2 July 2024, a Notice that Party Acting in Person was filed by the appellant's former solicitors.[43]
• [37] On 2 August 2024,[44] the respondents applied to the court for orders including that: the Court dismiss the 9 April 2024 application; the appellant's Claim against the second respondent be struck out; a Third Further Amended Statement of Claim and particulars be filed and served by 21 August 2024; the respondents file a Defence to the Third Further Amended Statement of Claim within the time period nominated; disclosure be effected as nominated; and, in relation to the 9 April 2024 application and the present application, that the appellant pay the respondents' costs in an amount to be agreed, or failing agreement to be assessed on the indemnity basis or standard basis ("2 August 2024 application").[45] In relation to the orders sought regarding particulars it included for "particulars set out in Schedule 1 to this application." Schedule 1 set out, in 12 numbered paragraphs, details of the "Further and Better Particulars" sought.
• [38] On 7 August 2024, the 9 April 2024 application and 2 August 2024 application were before the court, it seems, for hearing. It was noted by the Magistrate that the 2 August 2024 application had only been served two days prior and the appellant had not responded to the application so she was "not minded" to hear that application.[46] The appellant initially indicated that he did not wish to respond to the 2 August 2024 application by way of filing affidavit material[47] and stated that he wished for the matter to proceed to trial.[48] The appellant later indicated that he did wish to respond to the 2 August application and required a week to do so.[49] The legal representative for the respondents opposed any application for an adjournment of the 2 August 2024 application and suggested that he have some discussion with the appellant to see "what time he needs to respond to [the 2 August 2024 application] and whether some of it can be resolved today."[50] The matter was stood down and resumed two hours later. A draft order was provided to the court[51] by the respondents' legal representative and it was indicated that paragraphs 1, 3, 5, 6, 7, 8, 10, 12, and 13 of the draft order were "by consent".[52] It was agreed by the parties, after discussion, that paragraph 11 should be excluded as well as paragraph 9; and that in relation to paragraphs 4 and 14, costs should be reserved.[53] In relation to paragraph 2, the Magistrate determined that the order she would make is "the issue of the defendant's costs of and incidental to the plaintiff's application be determined on 2 October 2024".[54]
• [39] The order on the court file in relation to 7 August 2024 is worded "by consent" even though it appears that paragraph 2 was determined by the Magistrate.[55] It includes that the 9 April 2024 application was dismissed with costs to be determined on 2 October 2024. In relation to the 2 August 2024 application, it was adjourned to 2 October 2024, and orders were made in relation to the appellant filing a Third Further Amended Statement of Claim (paragraph 7), Particulars (paragraph 8),[56] and disclosure (paragraphs 9 and 10) by 21 August 2024. The first respondent was to file a Defence to any Third Further Amended Statement of Claim and an Amended Counterclaim by 11 September 2024. The claim against the second respondent was dismissed (paragraph 4) and the second respondent's costs of the proceeding were reserved (paragraph 5). The respondents' costs of and incidental to the 2 August 2024 application were reserved (paragraph 13) ("7 August 2024 order").
• [40] On 20 August 2024,[57] the appellant filed an affidavit which included that, as at 12 August 2024, he had not been provided with the file from his former solicitors.
• [41] On 21 August 2024 the appellant filed a Third Further Amended Statement of Claim as well as a "list of documents".[58]
• [42] In the Third Further Amended Statement of Claim",[59] the appellant claims that the vessel is a 35-ton, 60-foot Flybridge Cruiser. A verbal contract was made between the parties on 1 June 2021 that the vessel would be hauled and placed on a hardstand for a period of time required by the appellant. Further, the vessel would be returned to the water upon the appellant providing notice to the first respondent.
• [43] The appellant claims that the contract required the first respondent to provide the appellant sufficient space and electricity to carry out maintenance on the vessel; the daily fee under the contract was $111.15, rather than the $117 alleged by the first respondent in its Counterclaim; the $117 per day amount was set out in a quote that was never sent to the appellant; and he was never provided, nor did he sign, a copy of the written agreement that the first respondent claims exists between the parties.
• [44] The appellant claims that the first respondent failed to provide the appellant with adequate electricity as required by the verbal contract and the lack of power delayed his ability to carry out works on the boat. On 17 June 2021, the appellant entered into an agreement to hire his boat to a third party for a 30-day period at a rate of $500 per day starting on 21 June 2021. The appellant claims that he gave the first respondent notice on 21 June 2021 that the boat was to be removed from the hardstand and released into the water but, contrary to the verbal agreement that the boat would be released on notice, the first respondent failed to release the boat and told him it would not do so without payment. The appellant claims he therefore lost the income associated with the 30-day rental agreement he had entered with the third party in the sum of $15,000.00
• [45] The appellant claims that he arranged for the boat to be moored at an alternate mooring for a year starting on 21 June 2021 for a cost of $12,389.83. By failing to release the vessel into the water, the appellant claims the first respondent frustrated his ability to use the alternate mooring and the appellant incurred a financial loss in that amount.
• [46] The appellant claims that, at various times, he had entered into contracts with prospective purchasers of the vessel. The second prospective purchaser agreed to purchase the vessel for $249,000 but the sale was frustrated, and ultimately collapsed, by the first respondent refusing to release the vessel into the water. Ultimately, the boat was sold to the third prospective purchaser for $200,000 and the first respondent agreed to release the vessel upon the sum of $72,808 being paid into the trust account of the first respondent's solicitor. The appellant claims that he was deprived of $49,000,00 being the difference between the claimed sale price to the second prospective purchaser and the ultimate sale price of the vessel. A total of $76,389.63 is claimed.
• [47] On 22 August 2024, the appellant filed an application for orders including for the first respondent to make available to the appellant documents nominated in the application and that those same documents be struck out or deemed inadmissible in the proceedings.[60] An order was also sought for "variation of the orders made on 7 August 2024 to remove the following orders for the following reasons: 1. The plaintiff was handed his complete file on Sunday 18 August at 12.00 Noon in the carpark of the former solicitor, containing approximately 1500 pages and not in any order. It is impossible for the plaintiff to find the ordered material in this mess. Notwithstanding that the defendant is in possession of the said documents, I now refer to order 10(b) of the orders made. 2. That order 8(a) be removed for the same reasons as in Order 10(b)". [61] ("22 August 2024 application")
• [48] On 10 September 2024, the appellant's former solicitor filed an affidavit in relation to the costs' application listed on 2 October 2024.[62] The former solicitor states that the "file was about 1500 pages long" and that arrangements were made for the appellant to "come in on Sunday 7 August 2024 to collect his complete file." There is dispute between the former solicitor and the appellant as to the state of the file with the former solicitor stating he disagrees that the "file was in a mess".[63] The respondent's[64] solicitor filed an affidavit relating to costs on 25 September 2024.[65]
• [49] On 26 September 2024, the first respondent applied to the court for orders including:[66]

"1. That the plaintiff's application filed 22 August 2024 be dismissed;

1. 2. The plaintiff pay the defendant's costs of the plaintiff's application filed 22 August 2024 on the indemnity basis alternatively the standard basis;
2. 3. Pursuant to rule 374(3) of the UCPR (Qld), the plaintiff show cause why an order namely that the plaintiff's claim be dismissed and that judgment be entered on the defendant's counterclaim should not be made against him on the bases that:
   1. The plaintiff failed to comply with paragraph 8 of the order made 7 August 2024 in that he has not filed and served Further and Better Particulars of the Third Further Amended Statement of Claim;
   2. The plaintiff failed to comply with paragraph 9(f) of the order made 7 August 2024 in that he has not disclosed a copy of the contract between the plaintiff and the "third prospective purchaser" referred to at paragraph 15 of the Third Further Amended Statement of Claim;
   3. The plaintiff failed to comply with paragraph 9(h)(ii) of the order made 7 August 2024 in that he has not disclosed all correspondence between the plaintiff and the "first prospective purchaser" relating to the formation, terms, and termination of the agreement pleaded at paragraph 13 of the Statement of Claim;
   4. The plaintiff failed to comply with paragraph 10 of the order made 7 August 2024 in that he has not effected disclosure by providing to the defendants' solicitors:
      1. An Amended List of Documents describing each of the documents which the Plaintiff disclosed in the Proceeding; and
      2. A copy of each of the documents in separate PDF files named in a way that corresponds to the numbering and description of those documents in the Plaintiff's Amended List of documents."

• [50] Alternatives to the paragraph 3 orders were nominated, namely:
  1. "that the plaintiff's claim be dismissed and that judgment be entered on the defendant's counterclaim pursuant to rr 163 and 371(2) for failing to give proper particulars of the Third Further Amended Statement of Claim and rr 225(2) and 371(2) for the plaintiff's failure to disclose the documents set out in "Schedule 1, Part A to this application";[67] OR

1. if the plaintiff fails on a further occasion to comply with an order of the Court or a provision of the UCPR then, upon further application by the defendant accompanied by an affidavit evidencing the failure to comply the defendant shall be entitled to an Order that the plaintiff's claim be dismissed and judgment entered in favour of the defendant on its counterclaim including as to costs...; AND

(i) Pursuant to rule 171 of the UCPR paragraphs 3(vi)-(vii) of the Third Further Amended Statement of Claim be struck out; and > > (ii) Pursuant to rule 223 of the UCPR, the plaintiff disclose to the defendant the documents set out in Schedule 1, Part B to this application." [68] ("26 September 2024 application")

• [51] An affidavit sworn on 27 September 2024 was relied upon for the 26 September 2024 application.[69] That affidavit details the following at paragraph 22:

(a) the Plaintiff has not filed and served any Further and Better Particulars of the FASOC as required by paragraph 8 of the Order;

(b) the plaintiff has not produced a copy of the documents in the following categories, which I consider were captured by paragraph 9 of the 7 August 2024 Order;

(i) a copy of the contract between the Plaintiff and the 'third prospective purchaser' referred to at paragraph 15 of the Third Further Amended Statement of Claim;

(ii) all correspondence between the Plaintiff and the 'first prospective purchaser' relating to the formation, terms, and termination of the agreement pleaded at paragraph 13 of the Statement of Claim;

(c) although the Plaintiff delivered a further version of a List of Documents (at pages 96 to 101 of CM-1), that List of Documents does not describe the documents referred to in the Plaintiff's Affidavits sworn 15 and 21 August 2024 and marked '1A', '3', or the email dated 6 December 2021 appearing immediately before the document marked '13'; and

(d) the Plaintiff has not delivered the additional documents by separate PDF files named in a way that corresponds to the numbering and description of those documents in any List of Documents."

• [52] The annexures to the affidavit include correspondence between the appellant and solicitors for the respondent over the period 12 August 2024 to 26 September 2024.[70] The correspondence includes:
  1. 12 August 2024 - email from the respondent's solicitor to the appellant attaching a copy of the orders made by the Magistrate on 7 August 2024;[71]
  2. 12 August 2024 - email from the appellant to the respondent's solicitor - the appellant thanks the respondent's solicitor for sending through the 7 August 2024 order as he had not received same from the Court. He states "I may not be able to have all compiled, done and served as per those orders I just received. However, I will do my best and file what is completed as soon as possible. Please respond and indicate that you agree for an extension of 1 week for me to file all of the ordered material";[72]
  3. 13 August 2024 - email from the respondent's solicitor to the appellant clarifying what orders he is seeking an extension in relation to and stating "every attempt should be made to comply with the rest of the orders...If, next week, you still consider you cannot comply in time, please let us know";[73]
  4. 13 August 2024 - email from the appellant to the respondent's solicitors seeking consent for paragraphs 7-10 of the 7 August 2024 order to be extended "by one week only. This is due to some documents not available to me at this time";[74]
  5. 19 August 2024 - email from appellant to respondent's solicitors stating that he received his file on 18 August 2025 and there are "over 1000 pages...regarding the orders made on 07/08/2024, Paragraph 8 and 9. You have already received much of what you are asking for. Please advise whether there is anything else you require and that order 8 and 9 is now complied with.";[75]
  6. 19 August 2024 - email from appellant to respondent's solicitors including, "...most of which you are asking for is already in your possession. After looking through my file, only received yesterday, I note that the "further and better particulars asked for had already been provided to you on 23 October 2023.";[76]
  7. 20 August 2024 - letter from respondent's solicitors to the appellant pursuant to r 446 putting the appellant on notice that the respondent may seek orders dismissing his claim in the proceeding pursuant to rr 225(2), 371 and 374. The respondent's solicitors stated: "our client's position about the extension [of one week] is that [the appellant] should comply with the 7 August 2024 orders which were made with consent... that if the documents which are unavailable are required to comply with the court order then it should be explained why they are required. Further, that if any steps are taken late then the appropriate course is to seek to vary the Orders". The appellant was encouraged to "read the Order carefully, seek legal advice as necessary and make every effort to comply with the 7 August 2024 Order";[77]
  8. 20 August 2024 - email from the appellant to the respondent's solicitors - states that "it is clear to me that your client continues to obstruct, causing delays, deliberately looking for more adjournments...";[78]
  9. 21 August 2024 - email from the appellant to the respondent's solicitors stating that he had filed a number of documents with the court that same day and will send the stamped copies as soon as possible;[79]
  10. 11 September 2024 - letter from respondent's solicitor to appellant pursuant to r 446 setting out purported failures of the appellant with regard to the 7 August 2024 order. It detailed that unless the appellant rectifies the non-compliance with the 7 August 2024 order by 18 September 2024, that instructions are expected to bring further applications seeking orders pursuant to rr 374, 371, and 225;[80]
  11. 11 September 2024 - email from appellant to respondent's solicitor stating that he does not have internet service until next Monday and is not able to "look into and respond regarding the many issues raised by your firm. Could you please name the documents you are seeking. This would be most helpful...";[81]
  12. 15 September 2024 - email from appellant to respondent's solicitor - indicated it was in response to letters of 20 August 2024, 11 September 2024, and "15 August 2022". In relation to the letter of 20 August 2024, the appellant states: "I made you aware that I received my file on a Sunday afternoon while the court orders of 7 August required me to provide all documents by Wednesday, giving me two days' time. I did file the vast majority and to comply with the Orders in time to the best of my ability. Your response to deny the extension was unreasonable and deliberate to cause a breach of the orders...". In relation to the letter of 11 September 2024, "paragraph 2 to 3. You are in receipt of all documents as per the orders made on 7 August 2024. You are asking for documents that do not exist. You are asking for Further and Better particulars when there are none to disclose...". Documents were attached to the email;[82]
  13. 18 September 2024 - email from respondent's solicitors to appellant about the costs of the appellant's application filed 9 April 2024; an email to the court was proposed with a draft order vacating paragraphs 11 and 12 of the 7 August 2024 order and varying paragraph 15(d). Wording to the court is suggested which includes "first, the plaintiff has not complied with, at least paragraph 8 and aspects of paragraphs 9 and 10 of that Order. Given that non-compliance (i.e., the failure to deliver particulars and to produce certain documents), the first defendant considers it is unable (or ought not be required) to file an Amended Defence until those issues of non-compliance are addressed. The matter is next before the Court on 2 October 2024, and it is expected those issues can be addressed on that occasion...";[83]
  14. 18 September 2024 - email from appellant to respondent's solicitor - includes the words "I do not give consent to the proposed orders";[84] and
  15. 20 September 2024 - letter from respondent's solicitors to appellant addressing appellant's application of 22 August 2024 and r 446 relating to non-compliance.[85]
• [53] On 2 October 2024, the matter was before a different Magistrate - the same Acting Magistrate who made the orders the subject of the appeal. The first respondent alleged that Further and Better Particulars had not "been complied with at all".[86] The appellant stated that there were orders made on 7 August 2024 that he shouldn't have agreed to as they are "just a waste of time".[87] The respondent's legal representative indicated in relation to paragraph 9 of the 7 August 2024 order:
  1. that it was accepted that there has been a "genuine attempt to comply with each of those subparagraphs [paragraphs 9(a)-(d) of the 7 August 2024 order]...there has been compliance;"[88]
  2. in relation to subparagraph (e) that there has been a document disclosed that seems to align with the allegations made about the second prospective purchasers but it becomes "messy" due to now what is the third prospective purchaser;
  3. in relation to subparagraph (f) there has been no disclosure in relation to the third prospective purchaser;[89]
  4. in relation to subparagraph (g) and (h)(i) no documents have been produced "but an explanation has been given that there are no further documents" which is accepted";[90]
  5. in relation to subparagraph (h)(ii) an explanation has been provided that there are no further documents which is not accepted as "common experience would suggest that in relation to the purchase and sale of a $250,000 asset, there would at least be some emails back and forth about that";[91]
  6. in relation to subparagraph (i), a document has been produced along with an explanation that it is the only document which is not accepted as "we expect there are other documents in existence about that [condition of the vessel] relating to the application to transfer ownership and also any applications for insurance."[92]
• [54] The appellant indicated that he did not have any documentation in relation to paragraph 9(h)(ii) of the 7 August 2024 order[93] and in relation to paragraph 9(i) he had provided a copy of the survey report for the vessel which is equivalent to a safety certificate.[94]
• [55] In relation to paragraph 10 of the 7 August 2024 order, the respondent's legal representative said it was "...administrative. It's designed to help our office because of the way in which material's been received to date in the proceedings...". It was indicated that paragraph 10 had been "complied with in part; it's certainly not been complied with in full...There is an amended list of documents that has been provided by [the appellant], which includes some of the new material that he provided...There are some other documents which do not appear in that list which have also been produced...I raise that for completeness in relation to compliance with the order, your Honour. We don't say that that's the end of the world, but it's this sort of approach [which has served to increase costs]... I think that's all I want to say about 10...".[95]
• [56] The respondent's legal representative indicated, in relation to the 26 September 2024 application, that "the most significant basis for that application is the failure to give particulars together with the position that I think [the appellant] conveyed to your Honour about what he proposes to do about that".[96] The remainder of the day was taken up in relation to submissions in relation to costs of the 9 April 2024 application.
• [57] The learned acting Magistrate indicated, after submissions were heard about costs of the 9 April 2024 application, that she would adjourn part-heard.
• [58] The matter resumed on 23 October 2024. The appellant, when making submissions about why he should not be ordered to pay indemnity costs relating to the 9 April 2024 application, stated that when his solicitor "walked away on July 2nd, doesn't automatically mean that I understand what's going on. I didn't. I didn't really understand even on August 7 when I consented to all sorts of orders being made. I didn't fully understand what that meant until after...".[97]
• [59] In relation to the 26 September 2024 application pursuant to r 374, the legal representative for the first respondent stated:

"And I mean that in the sense that perhaps the failure to give particulars might not be so grievous if there had been fulsome disclosure from which we could understand the case that's been put against us, but we're told in many cases that there - documents don't exist. Whether that's to be accepted or not, my client's in a position where it has great difficulty in understanding the full extent of the case that might be put against it at trial and is met with an attitude from the plaintiff of refusal to engage with our correspondence, declining to deal with things, as he said today, unless they've been filed and sealed with the court, and an express desire to get the matter to trial as quickly as possible, never mind what sort of unfairness that might occasion to my client in actually understanding what the position is going to be. This matter can't proceed without the particulars being given. The plaintiff has made no attempt - or given no indication that any further particulars are forthcoming. There's been blanket refusals, blanket assertions that we have the documents that we're asking for. I'm not sure whether there's an appreciation of what particulars are or not, but certainly there should be based on what schedule 1 of my application said, and the orders that were made on the last occasion."[98] (underlining added)

• [60] The appellant submitted that he had complied with the 7 August 2024 order.[99] In relation to the Further and Better Particulars, the appellant indicated that he had provided all the documents in his possession. When the Acting Magistrate stated that is not the same as particulars "because the court has ordered to provide Further and Better Particulars", the appellant responded "they don't exist. That's why I couldn't do any better";[100] and later stated "they [Further and Better Particulars] don't exist. I don't have anything else to give or add to what I've already stated and given."[101] When the Acting Magistrate tried to take the appellant to "schedule 1", the appellant said "What's schedule 1? What's schedule 1... I don't know about Schedule 1... I don't think I have it...".[102] The appellant submitted that "if there was a case that I did not fully or properly comply with any of the orders made on 7th of August, it was certainly not deliberate and certainly should not give rise for a court to dismiss the case."[103]

• [61] If a party does not comply with an order, r 374 empowers a party entitled to the benefit of that order to make an application requiring the defaulting party to show cause why an order should not be made against it, and it confers a discretionary power upon the judge hearing the application to make orders, including an order for judgment against the defaulting party.[104]
• [62] Rule 374 provides:

(1) This rule applies if a party does not comply with an order to take a step in a proceeding.

(2) This rule does not limit the powers of the court to punish for contempt of court.

(3) A party who is entitled to the benefit of the order may, by application, require the party who has not complied to show cause why an order should not be made against it.

(a) must allege the grounds on which it is based; and

(b) is evidence of the allegations specified in the application; and

(c) must, together with all affidavits to be relied on in support of the application, be filed and served at least 2 business days before the day set for hearing the application.

(5) On the hearing of the application, the court may-

(a) give judgment against the party served with the application; or

(6) The party who makes the application may reply to any material filed by the party who was served with the application.

(7) The application may be withdrawn with the consent of all parties concerned in the application or with the court's leave.

(8) A judgment given under subrule (5)(a) may be set aside-

(a) if the application is made without notice - on an application to set the judgment aside; or

(9) Despite subrule (8), if the court is satisfied an order dismissing the proceeding was made because of an accidental slip or omission, the court may rectify the order."

• [63] Although it is not possible to exhaustively state the circumstances under which the power to dismiss a proceeding for failure to comply with the rules will appropriately be exercised, in Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 520; (1990) 27 FCR 388 which was followed by Applegarth J in Aqwell Pty Ltd v BJC Drilling Services Pty Ltd & Ors [2012] QSC 413, the Full Court of the Federal Court observed at [36]:

"... two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the applicant's state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding."

• [64] As was stated in Johnson v Public Trustee of Queensland as executor of the will of Brady (deceased) [2010] QCA 260 at [16]- [20] by Applegarth J with whose reasons McMurdo P and Chesterman JA agreed:

"[16] Rule 374 provides for a party who is entitled to the benefit of an order to, by application, require the party who has not complied to show cause why an order should not be made against it. On the hearing of such an application the Court may make a variety of orders and may "give judgment against the party served with the application." Such a rule:

"... must be administered sensibly and with an appreciation both of the fact that some delays are unavoidable, and unpredictable, by even the most conscientious parties and their lawyers, and of the likely serious consequences to an applicant of staying or dismissing a claim..."

The exercise of the discretion conferred by UCPR r 374 must take account of the purpose of the rules, which is "to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense." The rules are to be applied with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of the rules. In accordance with UCPR r 5(3), a party such as the appellant "impliedly undertakes to the court and to the other parties to proceed in an expeditious way", and the Court may impose appropriate sanctions if a party does not comply with the rules or an order of the Court.

[17] Reference was made by the appellant to the observations of Dawson, Gaudron and McHugh JJ in State of Queensland v JL Holdings about the extreme circumstances in which a party would be shut out from litigating an issue which is fairly arguable. Those observations were made in the context of the power to amend, and account must be taken of the more recent statements of principle concerning late amendment in Aon Risk Services Australia Ltd v Australian National University. The High Court's consideration of the interests of justice in that case arose in the context of late amendment to pleadings, and a rule of court in similar terms to UCPR r 5 concerning the purpose of the rules of civil procedure. It is unnecessary to address the variety of matters that may affect the determination of the interests of justice upon an application to amend, and the extent to which they also apply to the exercise of discretion under UCPR r 374. In considering the exercise of the discretionary power conferred under UCPR r 374 to terminate a proceeding account must be taken of "the need for reasonable access to the courts". The interests of justice also require account to be taken of the financial and personal strain imposed on litigants, witnesses and other parties who are affected by a party's failure to comply with a court order without adequate explanation or justification. The costs associated with bringing applications arising from non-compliance with court orders cannot always be recovered in full or at all by a costs order. In this matter the respondent was put to substantial costs associated with a number of hearings before judges of the District Court in 2009. For reasons to be addressed, there is no assurance that the respondent will recover those costs from the appellant, and recovery of them out of the estate diminishes the amount that is available for the benefit of its sole beneficiary.

[18] By her amended grounds of appeal, the appellant contends that the primary judge overlooked material considerations. However, the discretion conferred by UCPR r 374(5) is broad, once the condition for its exercise arises. Its exercise is governed by the purpose of the rules stated in UCPR r 5 and the general consideration as to whether the interests of justice warrant the exercise of the discretion. The exercise of the discretion is also influenced by the arguments advanced at a hearing for and against its exercise. A court reviewing the exercise of such a discretion should not lightly conclude that the primary judge overlooked material considerations if these matters were not submitted to be material.

[19] In considering a comparable rule in the Federal Court Rules, Wilcox and Gummow JJ stated that the discretion conferred by the rule was "unconfined, except for the condition of non-compliance with a direction ... [b]ut two situations are obvious candidates for the exercise of the power." The first was "cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period". The second were cases "whatever the applicant's state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent." Their Honours observed that although the history of the matter will always be relevant, it is more likely to be decisive in the first of those two situations:

"Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to cooperate, or for some reason, is unable to do so. Such a conclusion would not readily be reached; but where it was, fairness to the respondent would normally require the summary dismissal of the proceeding."

In the second of the two situations postulated by their Honours, namely a significant continuing default, it was observed:

"it does not really matter whether there have been earlier omissions to comply with the Court's directions. Ex hypothesi the default is continuing and is imposing an unacceptable burden on the respondent."

[20] In this matter both of the situations postulated by Wilcox and Gummow JJ existed. This proceeding became an obvious candidate for the exercise of the power to dismiss under UCPR r 374 because:

(a) the appellant's history of non-compliance indicated an inability or unwillingness to co-operate with the Court and the respondent in having the matter ready for trial within an acceptable period; and

(b) her default in compliance with the Court's orders was continuing and occasioning unnecessary delay and expense.

In addition, the appellant gave no indication as to how and when, if ever, she would comply with Court directions to file affidavits in a proper form in relation to her assets"."

• [65] The power is one to be exercised with caution, but r 5 makes it clear that the relevant considerations must include those which bear upon the question whether an applicant under r 374 is being vexed by a respondent who is unwilling or unable to proceed with the expeditious disposition of the litigation.[105]

• [66] There were four applications that the Acting Magistrate determined which are subject of the appeal namely the 9 April 2024, 2 August 2024, 22 August 2024, and 26 September 2024 applications.
• [67] In relation to paragraph 3(a) of the Acting Magistrate's orders, I was informed by the respondents' legal representative that the appellant's former solicitors have satisfied the order and is not an appellant on this appeal. In those circumstances, I have excluded from my consideration paragraph 3(a) of the Acting Magistrate's orders. The parties agreed with that course.
• [68] I agree with the respondents' submission that the grounds of appeal are cast in very general terms, however, the appellant is self-represented and some latitude must be afforded particularly in circumstances where I have formed the view that there is merit in the appeal.
• [69] The respondents submit that no "precise instance of an error of fact, law or discretion" has been identified. I disagree. I have taken into account that the Acting Magistrate "enjoyed some benefit over this court" including in assessing the appellant's attitude towards the proper conduct of the proceedings given the hearings on 2 October 2024 and 23 October 2024. Further, I have given respect and weight to the decision of the Acting Magistrate in deciding the proper inferences to be drawn from the facts.
• [70] I propose to address the orders made in relation to the 26 September 2024 application first.

UCPR r 374(5)(a) - plaintiff's claim is dismissed - appeal allowed

• [71] Rule 374(4)(a) of the UCPR requires that the applicant set out the grounds on which the application is based. The first respondent complied with r 374(4)(a) and set out grounds limited to those detailed above at paragraph 49.
• [72] As was stated by Skoein SJDC in MacTaggart v Burleigh Marr Distributions Pty Ltd [2004] QDC 480 at [10]:

"The intention of the rule is obvious. It is to have the application act as a pleading of all relevant facts and actually to stand as evidence of those facts. The reason behind that intention is also obvious. If the applicant can have the draconian result envisaged by rule 374(5)(a), that is, the final determination of the action, the shutting out of a party forever, that party ought to be made aware in the clearest terms of the facts on which the application is based and be faced with evidence of those facts."

• [73] However, other matters may be taken into account in exercising the discretion including, for example, previous non-compliance.[106]
• [74] The Acting Magistrate stated at paragraph 46 of her decision:

"[The] defendant's evidence was that as at 2 October 2024, although the plaintiff had complied (in part) with the order from 7 August 2024, in all significant respects, particularly with compliance that would allow the defendant to know and prepare the case against it, the plaintiff has not complied with the order. The plaintiff had not

(i) Filed a Further Amended Statement of Claim (Third Further Amended Statement of Claim (order 7);

(ii) Filed and served on the Defendants Further and Better Particulars of the Further Amended Statement of Claim or any Third Further Amended Statement of Claim;

(iii) Disclosed a copy of the contract between the Plaintiff and the 'third prospective purchaser' (as per paragraph 15 of the Third Further Amended Statement of Claim) (as per order 9(f));

(iv) Disclosed all correspondence between the Plaintiff and the 'first prospective purchaser' relating to the formation, terms and termination of the agreement pleaded at paragraph 13 of the Statement of Claim (as per order 9(h)(ii));

(v) Effected disclosure by providing to the Defendant's solicitors;

(a) An amended list of documents prescribing each of the documents which the Plaintiff discloses in the proceeding; and

(b) A copy of the documents in separate PDF files named in a way that corresponds to the numbering and description of those documents in the Plaintiff's Amended List of Documents (as per order 10)." (underlining added)

• [75] This contains an error of fact.
• [76] Whilst the Acting Magistrate footnoted the 26 September 2024 application at paragraph 46 of her decision, the application did not allege that the appellant had not filed a Third Further Amended Statement of Claim. The appellant had filed a Third Further Amended Statement of Claim on 21 August 2024, in compliance with the 7 August 2024 order.
• [77] Further, in paragraph 51 of the Acting Magistrate's decision, the error was repeated when she stated that the "defendant's solicitors conceded that the plaintiff had complied with the order in part only with respect to the disclosure of some documents." Compliance was not only with respect to disclosure.
• [78] The appellant had partly complied with the orders including by providing a Third Further Amended Statement of Claim. I recognise that the Acting Magistrate goes on at paragraph 51 to detail failures which do not include a Third Further Amended Statement of Claim but given what is detailed at paragraph 46,[107] then repeated in the first sentence of paragraph 51, and the reasons not expressly mentioning the filing of a Third Amended Statement of Claim, I am satisfied that the Acting Magistrate erred in fact.
• [79] At the appeal hearing, the legal representative for the respondents conceded that there had been an error at paragraph 46 and the first sentence of paragraph 51 but submitted that it was a "slip" and the "intent of her Honour's reasons here [including paragraphs 46 and 51] is to say that the Third Further Amended Statement of Claim did not contain the particulars".[108] I do not accept the respondents' contention given the Acting Magistrate's express wording in paragraph 46 and there is otherwise no express mention of filing a Third Further Amended State of Claim.
• [80] The respondents further contended at the appeal hearing that it was not a material error as the focus was on the failure to provide particulars.[109] I disagree. This was a material error of the Acting Magistrate given that the issue to be determined centred around compliance, or otherwise, with court orders. The Acting Magistrate's error is aggravated by the lack of express consideration of the other steps (in addition to filing a Third Further Amended Statement of Claim) taken by the self-represented appellant since 7 August 2024 to comply with, and clarify, the 7 August 2024 order.[110]
• [81] To my mind, the error is of such significance that it alone demonstrates that the Acting Magistrate erred in fact to the degree necessary to allow the appeal. However, even if I am wrong, and in any event, I also consider that the Acting Magistrate erred in the exercise of her discretion in making the order pursuant to r 374(5)(a) in all of the circumstances.
• [82] Given the steps taken towards compliance with the 7 August 2024 order, and the properly made concession by the respondent's legal representative below that the "significant basis of the application" was limited to the failure to provide particulars in compliance with the 7 August 2024 order, to my mind it was not open to determine, in the exercise of discretion, that the matter had reached the stage where it was appropriate to make an order pursuant to r 374(5)(a). The decision of the Acting Magistrate in the exercise of discretion was so unreasonable or so unjust that it must be set aside.
• [83] The self-represented appellant did not fail to comply with the 7 August 2024 order in its entirety - in fact there are only four grounds nominated as failures. Importantly, there was exchange of correspondence and an application made to the court seeking an extension of parts of the 7 August 2024 order.
• [84] I accept that there was a history of non-compliance with particulars, including when the appellant was self-represented, but that has to be balanced and weighed with the other steps taken by the appellant including partial compliance with the 7 August 2024 order.
  • [85] I have taken into account that the onus is on the appellant.
  • [86] Addressing each of the grounds relied upon for the 26 September 2024 application as per the lettering in paragraph 3 of the application:

a) Whilst the plaintiff had not filed and served Further and Better Particulars as required by the 7 August 2024 order, he did file the Third Further Amended Statement of Claim as required by the order. Further, on 22 August 2024, the plaintiff made an application, with accompanying affidavit, for orders including seeking to vary the order made on 7 August 2024 to remove the paragraph in relation to providing Further and Better Particulars (in part) and set out his reasons including that he had only been provided the file from his former solicitors recently.

It also cannot be lost sight of that whilst the order of 7 August 2024 was a court order, it was one made by consent by a self-represented litigant. Even the legal representative for the first respondent indicated at the 23 October 2024 hearing, "I'm not sure whether there's an appreciation of what particulars are or not...". That seems a reasonable concession for the legal representative to have made especially as the appellant said on a number of occasions to the Acting Magistrate and in correspondence that he had complied as he had provided all the documents in his possession. Further, the appellant indicated below that he was unaware of "Schedule 1" which was the document referenced in the 7 August 2024 order founding, in part, what was required for the Further and Better particulars. Schedule 1 was attached to the respondent's application of 2 August 2024 but was not attached to the 7 August 2024 order made by the court nor to the copy of the order provided by the respondent to the appellant.[111]

b) In relation to non-compliance with paragraph 9(f) of the 7 August 2024 order, it was one of nine sub-paragraphs of paragraph 9 requiring the appellant to disclose documents. Paragraph 9(f) was worded as "any other document referred to in the plaintiff's Third Further Amended Statement of Claim" and the contention was that the appellant had not disclosed "a copy of the contract between the plaintiff and the third prospective purchaser referred to at paragraph 15 of the Third Further Amended Statement of Claim." For a self-represented litigant, it is perhaps understandable that he may have omitted to provide a document given the generality of the order made and now states that he is not in possession of same;

c) Some of the same considerations apply as per (b) for a self-represented litigant to omit to disclose what is required as per 9(h)(ii) when other sub-paragraphs were complied with;

d) The appellant had filed on 22 August 2024, an application seeking that part of this order be removed for the reasons detailed by him including that he had only recently been handed the file by his former solicitor and the volume of material.

• [87] The Acting Magistrate made the finding at paragraph 48 of her decision that she did not accept that the "plaintiff was confused by the status of the provision of Further and Better Particulars, believing that the defendant is in receipt of same" but does not provide any reasons for this finding other than stating at paragraph 49 that the respondent's solicitors clearly advised the plaintiff on 20 August 2024 and 11 September 2024 that re-sending deficient particulars did not constitute compliance.[112]
• [88] To my mind, at least, further reasons were required, in the circumstances of the present case, as to the basis of that finding given the appellant was self-represented by the time of the 7 August 2024 order which was made by consent; there was partial compliance with the 7 August 2024 order and emails were sent by the appellant to the respondent's solicitors seeking clarification of aspects of the 7 August 2024 order.
• [89] At the appeal hearing the respondents' legal representative submitted that even if the Court determined that the appellant was unaware of schedule 1 to the 2 August 2024 application, that is "capable of going to inability or unwillingness"[113] to comply with the 7 August 2024 order given that the schedule was attached to the application and to a letter from the respondents on 20 August 2024. Further, that the respondents had gone to considerable length to inform the appellant of what was required to comply.
• [90] To my mind, the point had not been reached where it could be said that the appellant was subjectively unwilling to co-operate or was unable to do so. The 7 August 2024 order was made by consent shortly after the appellant became self-represented. The appellant had informed the respondent's solicitors that the material was, to him, voluminous; he engaged in correspondence with the respondents and made an application to the court seeking an extension of time for compliance in part.
• [91] The discretion must take into account the seriousness of the consequences of shutting out a claim or the defence of a claim. The power must be exercised with caution. There was not repeated non-compliance with court orders as occurred in Klerck & Ors v Sierocki & Anor [2014] QCA 355.
• [92] The Acting Magistrate stated at paragraph 17 of her reasons:

"The plaintiff's non-compliance with the 7 August 2024 order cannot be viewed in isolation. It is the culmination of the Plaintiff's non-compliance with the 7 August 2024 order, the non-compliance with the UCPR from the outset of proceedings and his inability or unwillingness to cooperate with the Defendant to progress the matter is what makes the non-compliance of the 7 August 2024 significant. It was due to the Plaintiff's persistent non-compliance with the UCPR and the Plaintiff's ongoing delay in progressing the proceedings that founded the First and Second Defendant's 2 August 2024 application and the 7 August 2024 Order."

"The plaintiff's persistent non-compliance with the UCPR, particularly with the provision of "non-deficient" particulars (despite numerous complaints by the Defendants) from the outset of proceedings and then the Plaintiff's continued non-compliance despite the order from the Court on 7 August 2024 is a relevant consideration. So too is the breach of the Plaintiff's implied undertaking to proceed in an expeditious way which has resulted in prejudicial impact to the Defendants not only in terms of knowing the Plaintiff's case and preparing its defence but also with respect to financial outlay and incurred costs."

• [94] The Acting Magistrate stated at paragraph 42 of her decision, that "on 22 August 2024, without complying with the orders made [on] 7 August 2024, the Plaintiff filed another application."
• [95] The above passages in my view fail to consider, or do not give sufficient weight to, the appellant's partial compliance with the 7 August 2024 order, and that part of the 22 August 2024 application was to seek extensions of the 7 August 2024 order.
• [96] Further, whilst the Acting Magistrate in her decision at paragraphs 21-40, details under the heading of "chronology of plaintiff's non-compliance with the UCPR", correspondence between the parties up to 18 June 2024, she does not go on to consider the correspondence following 7 August 2024 and in particular the correspondence where the appellant is engaging with the respondent's solicitors as a self-represented litigant.
• [97] I allow the appeal and set aside paragraph 1(a) of the Magistrate's order. I recognise that r 371 of the UCPR was also relied upon but that does not alter my views expressed above.
• [98] To my mind, the order that was appropriate to make in all the circumstances was one which expressly stated what was required (and for any schedule, if one is required, to be attached to the order itself) in terms of particulars and to give the self-represented appellant an opportunity to comply with that order. I will hear the parties as to the terms of what that order should contain.

Rule 374(5)(a) - judgment entered on the counterclaim - appeal allowed

• [99] To my mind, it is clear that the Magistrate erred in entering judgment on the counterclaim.
• [100] In addition to the reasons detailed above, the learned Magistrate failed to give any separate consideration as to whether judgment should be entered for the first respondent on the Counterclaim. After detailing the failings of the appellant to comply with the 7 August 2024 order and making adverse findings against him, she stated at paragraph 57:

"Consequently, pursuant to Rule 374(5) UCPR the plaintiff's claim is dismissed and judgment entered for the defendant on the counterclaim."

• [101] This was an error.
• [102] Separate consideration was required as to whether judgment should be entered for the first respondent on the Counterclaim and reasons provided.
• [103] In the hearing of 23 October 2024, there was no mention of the Counterclaim in substantive submissions. The Acting Magistrate explained to the appellant that the application was "asking for your claim to be dismissed".[114] There was no mention by the respondent's legal representative in substantive submissions about the Counterclaim nor by the appellant.
• [104] In making the order, the Acting Magistrate conclusively struck out the appellant from defending a not insignificant claim against him.
• [105] I adopt what Robin DCJ stated in Sunlouvre Pty Ltd v Huenerberg [2003] QDC 439 at [12]:

"It is one thing, in my opinion, to give judgment against a plaintiff, claimant or applicant upon his own claim on the basis of sufficiently serious failure to comply with a rule, practice direction or order of a court- it may be a far stronger thing to punish an errant defendant or respondent by giving judgment against him, her or it upon a claim which was never tested or examined...". Similar to that case, the present is not a case where the "[counter] claim appears so clear that being permitted to defend it looks something like an indulgence."[115]

• [106] At the appeal hearing, the respondents' legal representative conceded that "the judgment on the Counterclaim was entered on the same basis as the judgment on the Claim, and so I don't consider it can survive if your Honour was to allow the appeal on the Claim."[116] Further, the respondents' legal representative accepted that the Acting Magistrate's decision should have set out why she was exercising her discretion to enter judgment on the Counterclaim.[117]
• [107] I allow the appeal and set aside paragraphs 1(b)(i)(ii) and (iii) of the Acting Magistrate's order. I also set aside paragraph 2 which was an order made for release of funds from the respondent's solicitors trust account in partial satisfaction of the judgment entered in consequence of paragraph 1(b) of the Order. I also set aside paragraph 5 as it relates to costs of the 26 September 2024 application.

Dismissal of plaintiff's application filed 22 August 2024 - appeal allowed

• [108] The respondents submit that "the Magistrate, correctly, took the approach of first dealing with the [First] defendant's 26 September 2024 application seeking final orders under Rule 374 of the UCPR on the basis that, if it was resolved in favour of the First Defendant, then it would be unnecessary to deal with the remaining substantive aspects of the first and second defendants 2 August 2024 application or the plaintiff's 22 August 2024 application."
• [109] Whilst that is true, where that leaves matters on appeal is that the only reasons given by the Magistrate in dismissing the 22 August 2024 application are at paragraph 59 where she states "also, given the reasons outlined above and the dismissal of the plaintiff's claim pursuant to Rule 374 UCPR, the plaintiff's application filed 22 August 2024 is dismissed."
• [110] In my view, the order made dismissing the application ought be set aside given that there was no separate consideration given to it and in circumstances where I have determined that the Acting Magistrate erred in making the orders pursuant to UCPR r 374.
• [111] I allow the appeal and set aside paragraph 4 of the Acting Magistrate's order. I also set aside paragraph 5 as it relates to costs of the 22 August 2024 application.

Costs of the proceeding on the standard basis - second respondent - appeal allowed

• [112] The proceedings against the second respondent were dismissed by consent in the 7 August 2024 order and costs were reserved.
• [113] Paragraph 6 of the Acting Magistrate's order was that "the plaintiff pay the defendant, Trenton Gay's, costs of the proceeding on the standard basis as agreed between the parties or, failing agreement, as assessed". There are no reasons provided by the Magistrate as to why she made this order nor does there appear to be any discussion of it at the hearing.
• [114] The respondents accepted in oral submissions on the appeal, that if the appeal is allowed and the orders made relating to the Claim and Counterclaim are being set aside, it is appropriate that this order also be set aside[118]. I set aside paragraph 6 of the Acting Magistrate's order.

Costs of the plaintiff's application filed 9 April 2024 and defendant's application filed 2 August 2024 - appeal allowed

• [115] Paragraph 3(b) of the Acting Magistrate's order was that "the defendant's costs of the plaintiff's application filed 9 April 2024 and the defendant's application filed 2 August 2024 be paid on the indemnity basis: As to the period 8 July 2024 to 7 August 2024 by the plaintiff fixed in the amount of $18,939.60."
• [116] It is accepted by the respondents that:
  1. "In the event that the appeal is allowed and paragraph 1 of [the Acting Magistrate's] order is set aside, that paragraph 3(b) should also be set aside as it relates to costs of the application filed 2 August 2024"; and
  2. "... the affidavit of Harry Nicolaidis cannot be relied upon in order to fix the costs of the plaintiff's application filed on [9 April 2024] only, given that the costs which Mr Nicolaidis deposes to over the time period of 4 July 2024 to 7 August 2024 includes the costs of the 7 August 2024 hearing which only partly related to the plaintiff's application of 9 April 2024, and also related to the defendants' application filed on 2 August 2024, and Mr Nicolaidis' affidavit does not distinguish between which costs are attributable to each application".[119]

• [117] The respondents "seek that the issues captured by Order 3(b) be remitted to the Magistrates Court".[120] I set aside paragraph 3(b) of the order.

• [118] It is not strictly necessary to determine this ground given my other findings however given the contentions made by the appellant I consider it appropriate for me to state that there is no merit in this ground. The appellant contends that the Acting Magistrate demonstrated "personal displeasure and bias" throughout the proceedings which compromised the fairness of the hearing. No particulars are provided. There is no evidence that the Acting Magistrate displayed bias or apprehended bias. In a busy court, she, in juggling many matters, sought to hear the matter and provide an outcome in an expeditious fashion.

1. The appeal be allowed.
2. The orders of the Acting Magistrate made on 10 February 2025 be set aside apart from paragraph 3(a) which has been satisfied by the appellant's former solicitor and in circumstances where that solicitor is not an appellant on this appeal.
3. I will hear from the parties as to further orders.

[1] Magistrates Court document number 57.

[2] There is an obvious error in the order as it refers to "paragraph 6(b) above" when there is no such paragraph. It should refer to paragraph 1(b).

[3] A "?" appears on the Order which appears to be an error.

[4] Again, a "?" appears on the Order which appears to be an error.

[17] UCPR 374(8) - as here notice was provided of the application.

[18] Document 1 and Document 2 in the Magistrates Court proceeding, respectively.

[19] Document 3 in the Magistrates Court proceeding.

[20] Document 6 in the Magistrates Court proceeding.

[21] Document 8 in the Magistrates Court proceeding.

[22] Document 9 in the Magistrates Court proceeding.

[23] Document 10 in the Magistrates Court proceeding. The Counterclaim was made by the first respondent only.

[24] Document 11 in the Magistrates Court proceeding.

[25] Document 14 in the Magistrates Court proceeding.

[26] Document 14A and Document 15 in the Magistrates Court proceeding, respectively.

[27] Document 16 in the Magistrates Court proceeding.

[28] Affidavit of Harry Nicolaidis sworn 2 July 2024 (Document 25), Exhibit HN 1 p51-52.

[29] Document 18 in the Magistrates Court proceeding.

[30] Document 19 in the Magistrates Court proceeding.

[31] Affidavit of Harry Nicolaidis sworn 2 July 2024 (Document 25), Exhibit HN 1 p138.

[32] Affidavit of Harry Nicolaidis sworn 2 July 2024 (Document 25); Exhibit HN 1 p139-142.

[33] Affidavit of Harry Nicolaidis sworn 2 July 2024 (Document 25); Exhibit HN 1 p151.

[34] Affidavit of Harry Nicolaidis sworn 2 July 2024 (Document 25); Exhibit HN 1 p172.

[35] Document 20 and Document 21 in the Magistrates Court proceeding, respectively.

[36] Affidavit of Harry Nicolaidis sworn 2 July 2024 (Document 25); Exhibit HN 1 p187.

[37] Affidavit of Harry Nicolaidis sworn 2 July 2024 (Document 25); Exhibit HN 1 p188.

[38] Affidavit of Harry Nicolaidis sworn 2 July 2024 (Document 25); Exhibit HN 1 p189-197.

[39] Affidavit of Harry Nicolaidis sworn 2 July 2024 (Document 25); Exhibit HN 1 p205.

[40] Affidavit of Harry Nicolaidis sworn 2 July 2024 (Document 25); Exhibit HN 1 p208.

[41] Affidavit of Harry Nicolaidis sworn 2 July 2024 (Document 25); Exhibit HN 1 p215-222.

[42] Affidavit of Harry Nicolaidis sworn 2 July 2024 (Document 25); Exhibit HN 1 p225.

[43] Document 30 in the Magistrates Court proceeding.

[44] Document 28 in the Magistrates Court proceeding.

[45] Document 29 in the Magistrates Court proceeding.

[46] Transcript of 7 August 2024 at page 3 line 42 to page 4 line 25.

[47] Transcript of 7 August 2024 at page 5 lines 30-40.

[48] Transcript of 7 August 2024 at page 6 lines 14-20.

[49] Transcript of 7 August 2024 at page 7 lines 45 to page 8 line 5.

[50] Transcript of 7 August 2024 at page 10 lines 1-5.

[51] This is not document 31 and no copy is on the Magistrate's court file.

[52] Transcript of 7 August 2024 at page 17 line 17-19.

[53] Transcript of 7 August 2024 at page 19 line 45- page 25 line 25.

[54] Transcript of 7 August 2024 at page 58 lines 5-8.

[55] Document 31 in the Magistrates Court proceeding.

[56] This included particulars as set out in "Schedule One to the Defendants' Application" but the Schedule is not attached to the Order.

[57] There are two stamps on this document - one from the Magistrates Court registry of 15 August 2024 and the other says "electronically filed - 20 August 2024". Document 34 in the Magistrates Court proceeding.

[58] Documents 35 and 36 in the Magistrates Court proceeding.

[59] Document 35 in the Magistrates Court proceeding.

[60] Document 33 in the Magistrates Court proceeding.

[61] Paragraph 10(b) was for the appellant to provide to the respondent's solicitors by 21 August 2024 a copy of each of the documents (nominated in paragraph 9) in separate PDF files. Paragraph 8(a) related to providing "any part of the Further and Better Particulars delivered on 27 October 2023 (the particulars) which the plaintiff intends to rely upon at trial." The appellant did not seek an extension in relation to paragraph 8(b) which read "the particulars set out in Schedule 1 to the defendants' application."

[62] Document 37 in the Magistrates Court proceeding.

[63] Affidavit of Rodney Mugford filed on 10 September 2024 at paragraph 7.

[64] There is deliberate use of the singular from 7 August 2024, as applicable, given the proceedings in relation to the second respondent were dismissed- there was an outstanding issue of costs but they were reserved by the 7 August 2024 order and there was no indication in the 7 August 2024 order that the question of those costs would be heard on 2 October 2024.

[65] Document 38 in the Magistrates Court proceeding.

[66] Document 39 in the Magistrates Court proceeding.

[67] These were the documents at 9(h)(ii) of the 7 August 2024 order; documents referenced at the top of page 4 of the Third Further Amended Statement of Claim; and documents at paragraph 9(i) of the 7 August 2024 order.

[68] These were not, at least, expressly detailed in the 7 August 2024 order.

[69] Document 41 in the Magistrates Court proceeding. It also was filed in relation to the plaintiff's 22 August 2024 application.

[70] Exhibit CM-1 to affidavit at pages 16-185.

[71] Pages 16-19. Schedule One to the respondents' 2 August 2024 application is not attached.

[86] Transcript of proceedings on 2 October 2024 at page 19 line 39.

[87] Transcript of proceedings on 2 October 2024 at page 22 line 28.

[88] Transcript of proceedings on 2 October 2024 at page 26 lines 39-45.

[89] Transcript of proceedings on 2 October 2024 at page 27 lines 1-15.

[90] Transcript of proceedings on 2 October 2024 at page 27 lines 27-29.

[91] Transcript of proceedings on 2 October 2024 at page 27 lines 38-45.

[92] Transcript of proceedings on 2 October 2024 at lines 15-25.

[93] Transcript of proceedings on 2 October 2024 at page 28 line 5-45.

[94] Transcript of proceedings on 2 October 2024 at page 30 lines 22-32.

[95] Transcript of proceedings on 2 October 2024 at page 31 line 17- page 33 line 44.

[96] Transcript of proceedings on 2 October 2024 at page 42 lines 23-30.

[97] Transcript of proceedings on 23 October 2024 at page 12 lines 29-35.

[98] Transcript of proceedings on 23 October 2024 at page 51 lines 9-25.

[99] Transcript of proceedings on 23 October 2024 at page 27 line 43.

[100] Transcript of proceedings on 23 October 2024 at page 57 line 30- page 58 line 32.

[101] Transcript of proceedings on 23 October 2024 at page 59 lines 3-5.

[102] Transcript of proceedings on 23 October 2024 at page 60 lines 5-40.

[103] Transcript of proceedings on 23 October 2024 at page 66 lines 45-50

[104] Klerck & Ors v Sierocki & Anor [2014] QCA 355 at [1] per Fraser JA.

[105] Klerck & Ors v Sierocki & Anor [2014] QCA 355 at [15] per Fraser JA.

[106] Klerck & Ors v Sierocki & Anor [2014] QCA 335 at [11] per Fraser JA.

[107] And [42] where filing of the Third Further Amended Statement of Claim is not mentioned.

[108] Transcript of appeal hearing on 5 November 2025 at page 6 lines 15- page 7 line 20.

[109] Transcript of appeal hearing on 5 November 2025 at page 7 lines 20-25.

[110] These are set out at paragraphs 47 and 52 of this judgment.

[111] I accept that it was, at least, attached or enclosed to a lengthy letter to the appellant by the respondent's legal representative of 20 August 2024 even though the attachment or enclosure was not exhibited to the affidavit of Cameron McCormack (Document 41 at page 51-56; see paragraph 8.3 of the letter).

[112] I refer also to paragraph 53 where the Acting Magistrate accepted the submission on behalf of the defendant that the plaintiff has had ample opportunity to provide particulars.

[113] Transcript of appeal hearing on 5 November 2025 at page 11 lines 1-5.

[114] Transcript of proceedings on 23 October 2024 at page 35 line 24. See also page 52 at line 37.

[115] Sunlouvre Pty Ltd v Huenerberg [2003] QDC at [12].

[116] Transcript of proceedings at the appeal hearing at page 30 lines 25-35.

[117] Transcript of proceedings at the appeal hearing on 5 November 2025 at page 31 lines 10-15.

[118] Transcript of appeal hearing at page 81 lines 37-47.