Jason Hall t/as JHL Lawyers v Val Eco Homes Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION: Jason Hall t/as JHL Lawyers v Val Eco Homes Pty Ltd (in liq) [2021] QCA 236

PARTIES: JASON HALL trading as JHL LAWYERS / ABN 26 312 281 326 / (respondent/respondent/applicant) / v / VAL ECO HOMES PTY LTD (in liquidation) / ACN 104 030 462 / (appellant/applicant/respondent)

FILE NO/S: Appeal No 10512 of 2021 / DC No 2625 of 2020

DIVISION: Court of Appeal

PROCEEDING: Application to Strike Out / Application for Extension of Time s 118 DCA (Civil)

ORIGINATING COURT: District Court at Brisbane – [2020] QDC 301 (Jarro DCJ) / District Court at Brisbane – [2021] QDC 182 (Jarro DCJ)

DELIVERED ON: 8 November 2021

DELIVERED AT: Brisbane

HEARING DATE: 28 October 2021

JUDGE: Fraser JA

ORDERS: The respondent’s application be dismissed.The appellant’s application be adjourned to the hearing of the appeal.The costs of each of the applications be reserved.

CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the appellant had applied, inter alia, for an order seeking costs assessment of 27 invoices rendered by the respondent for work done under s 335 of the Legal Profession Act 2007 (Qld) – where the primary judge ordered costs to be assessed in relation to two of the invoices on 13 August 2021 – where the appellant wishes to appeal seeking assessment of the remainder of the invoices on various grounds – where the respondent applied for orders that the appellant’s notice of appeal be struck out the ground that, inter alia, the appellant failed to seek leave to appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld) – where the appellant applied for leave nunc pro tunc under s 118(3) and r 661(4) of the Uniform Civil Procedure Rules 1999 (Qld) – where the appellant argues that its claim for referral to assessment of the respondent’s costs is “a claim … relating to … property” that has the necessary value under s 118(2)(b) of the District Court of Queensland Act and thus, leave under s 118(3) is not required – where the appellant submits the relevant “property” is the money claimed in the respondent’s invoices and the relevant “value” is the total amount of those invoices – where that total amount exceeds the monetary limit of the Magistrates Court’s jurisdiction – where the respondent argues s 118(2)(b) was not engaged as there was no relevant “value” that could be discerned until the costs had been assessed – whether s 118(2) was engaged – whether leave was required under s 118(3) to appeal to the Court of Appeal – whether the appellant’s notice of appeal should be struck out / APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the appellant had applied, inter alia, for an order seeking costs assessment of 27 invoices rendered by the respondent for work done under s 335 of the Legal Profession Act 2007 (Qld) – where the primary judge ordered costs to be assessed in relation to two of the invoices on 13 August 2021 – where the appellant wishes to appeal seeking assessment of the remainder of the invoices on various grounds – where the respondent applied for orders that the appellant’s notice of appeal be struck out on the ground that, inter alia, the appellant failed to seek leave to appeal under s 118B of the same Act – where the first two orders made by the primary judge on 13 August 2021 was in relation to costs of the application before the primary judge and the remaining orders related to the application for costs assessment under s 335 of the Legal Profession Act – whether the appeal against the orders made by the primary judge on 13 August 2021 is “an appeal only in relation to costs” such that leave would be required under s 118B from the primary judge to appeal to the Court of Appeal – whether the failure to seek such leave means the notice of appeal should be struck out on that ground / PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY – where the appellant had applied, inter alia, for an order seeking costs assessment of 27 invoices rendered by the respondent for work done under s 335 of the Legal Profession Act 2007 (Qld) – where the primary judge ordered costs to be assessed in relation to two of the invoices on 13 August 2021 – where the appellant wishes to appeal seeking assessment of the remainder of the invoices on various grounds – where the respondent applied to have the notice of appeal struck out on three grounds – whether a single judge in the Court of Appeal has power to strike out a notice of appeal under the District Court of Queensland Act 1967 (Qld) or the Supreme Court of Queensland Act 1991 (Qld) or the Uniform Civil Procedure Rules 1999 (Qld) / APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the appellant had applied, inter alia, for an order seeking costs assessment of 27 invoices rendered by the respondent for work done under s 335 of the Legal Profession Act 2007 (Qld) – where the primary judge ordered costs to be assessed in relation to two of the invoices on 13 August 2021 – where the appellant wishes to appeal seeking assessment of the remainder of the invoices on various grounds – where the respondent applied for orders that the appellant’s notice of appeal be struck out on the ground that, inter alia, the appeal was commenced after expiry of the time limited for appeal – where the appellant applied for an extension of time to bring the appeal – where in the main judgment the primary judge dismissed the balance of the appellant’s application in the reasons but this was not reflected in the pronouncement of orders in court nor the coversheet for the judgment under “Orders” – where in costs application the primary judge made orders for the assessment of two costs invoices but did not dismiss the remainder of the appellant’s application in the “Orders” section on the coversheet – where the appellant argues no extension of time is required as the appellant’s application was dismissed by the primary judge on 13 August 2021 in the costs judgment – where the respondent argues an extension of time is required as the appellant’s application was dismissed on 27 November 2020 in the primary judgment – whether the orders the subject of appeal, dismissing the appellant’s application for costs assessment for the remaining invoices were made in the primary judgment or in the costs judgment, if at all – whether an extension of time is required under r 748 for the appellant to appeal to the Court of Appeal – whether, if required, an extension of time to appeal should be granted – whether the appeal should be struck on the ground that it was brought out of time / District Court of Queensland Act 1967 (Qld), s 118, 118B / Legal Profession Act 2007 (Qld), s 301, s 335 / Supreme Court of Queensland Act 1991 (Qld), s 30, 44 / Uniform Civil Procedure Rules 1999 (Qld), r 660, r 661, r 676, r 748, r 767 / Coles Group Limited v Costin [2015] QCA 140, followed / Lessbrook Pty Ltd (in liq) v Whap [2014] 2 Qd R 102; [2014] QCA 63, followed / McElligott v McElligott & Ors [2014] QCA 54, cited / Slea Pty Ltd v Connective Services Pty Ltd (2018) 359 ALR 159; [2018] VSCA 180, followed

COUNSEL: D A Skennar QC, with P J Trout, for the applicant / N Andreatidis QC, with O Cook, for the respondent

SOLICITORS: JHL Lawyers for the applicant / Dowd & Co Lawyers for the respondent

1. FRASER JA: The respondent applied for orders that the appellant’s notice of appeal be struck out upon three separate grounds: the appellant failed to seek leave to appeal under s 118 of the District Court of Queensland Act 1967 (Qld), the appellant failed to seek leave to appeal under s 118B of the same Act, and the appeal was commenced after expiry of the time limited for appeal. The appellant responded by applying for orders that the time for it to appeal be extended, it be granted leave nunc pro tunc under s 118(3) of the District Court of Queensland Act to file and serve the notice of appeal, and leave to appeal be allowed pursuant to r 661(4)(b) of the Uniform Civil Procedure Rules 1999 (Qld). After hearing argument, I indicated that, for reasons I would publish, I would make orders dismissing the respondent’s application and adjourning the appellant’s application to the hearing of the appeal.

2. The litigation arose out of a loan facility deed dated 19 February 2019, pursuant to which the appellant borrowed $600,000.00 from KTEHF Pty Ltd. One clause of that deed obliges the appellant to indemnify KTEHF Pty Ltd for costs and various other imposts, including all reasonable legal costs, on a solicitor and own client basis, paid or incurred by KTEHF Pty Ltd of or incidental to a broadly expressed range of matters relating to the deed. The respondent provided legal services relating to the deed and issued invoices for legal costs to KTEHF Pty Ltd. Between 21 September 2018 and 27 September 2019 the respondent issued 27 invoices to KTEHF Pty Ltd for those legal services, the total amount of the invoices being $474,104.31. On 9 July 2019 the respondent notified the appellant that KTEHF Pty Ltd had incurred costs totalling $396,740.76 as a result of a breach of the deed that had previously been notified to the appellant. KTEHF Pty Ltd sought reimbursement of that sum, of which $220,000.00 was said to be for legal costs to be undertaken on behalf of KTEHF Pty Ltd as a consequence of the breach. The balance of the amount for which reimbursement was sought comprised legal costs incurred by KTEHF Pty Ltd before 9 July 2019, $7,700.00 for barrister’s fees, and $31,000.00 for accounting fees payable in advance. The appellant appears to have deposited the sum of $396,740.76 into the respondent’s trust account shortly afterwards. That sum was evidently applied to reimburse the costs claimed to have been incurred by KTEHF Pty Ltd. It seems that the payment of $220,000.00 on account of future legal costs was subsequently applied to the payment of invoices rendered by the respondent between 11 July 2019 and 23 August 2019.

3. On 12 August 2019 a liquidator was appointed to the appellant. After an exchange of correspondence and the provision by the respondent to the appellant of the 27 costs invoices rendered by the respondent, the appellant applied in the District Court on 16 September 2020 for orders requiring the respondent to deliver a relevant costs agreement and itemised bills in relation to nine of the invoices, for the assessment of the costs charged in the 27 invoices, and for the appointment of a costs assessor for that purpose.

“…

(2)A third party payer may apply for an assessment of the whole or any part of legal costs payable by the third party payer.

(3)The costs application may be made even if the legal costs have been wholly or partly paid.

…

(5)A costs application by a client or a third party payer must be made within 12 months after –

(a)the bill was given, or the request for payment was made, to the client or third party payer; or

(b)the costs were paid if neither a bill was given nor a request was made.

(6)However, a costs application made out of time, otherwise than by any of the following, may be dealt with by a costs assessor or a court if, under the Uniform Civil Procedure Rules, the assessor or the court decides to deal with it after considering the reasons for delay –

(a)a sophisticated client;

(b)a third party payer who would be a sophisticated client if the third party payer were a client of the law practice concerned.”

5. It is common ground that the appellant is a “non-associated third party payer”, as defined in s 301 of the Legal Profession Act 2007, because the appellant was under a legal obligation, owed to a person other than the respondent, to pay at least part of the legal costs for legal services provided by the respondent to its client KTEHF Pty Ltd. It is in issue whether the appellant would be a “sophisticated client” in terms of s 335(6)(b).

6. The appellant’s costs application proceeded to a hearing in the District Court on 12 November 2020. On 27 November 2020 the primary judge published reasons. The respondent’s argument that an appeal by the appellant requires an extension of time is based upon the proposition that on 27 November 2020 the primary judge made an order dismissing the appellant’s costs application, otherwise than in relation to two invoices. The respondent argues that such an order was made in the second last sentence (which I have emphasised) in the last paragraph of the reasons published by the primary judge on 27 November 2020:

“[32] I find the applicant is entitled to an assessment of part of the legal costs, more particularly for bills 26 and 27 (being invoices 12337 and 12381) and any ancillary orders relating to same. The application is otherwise dismissed. I will hear the parties as to the form of the order and costs.”

7. The coversheet of the primary judge’s reasons identified the only order as being, “I will hear from the parties as to the form of the order and costs”. Similarly, a transcript of the proceedings on 27 November 2020 records that the primary judge referred to having heard the appellant’s application and stated:

“I have decided to hear from the parties as to the form of the order and costs consistent with the reasons that I now publish. I direct that the parties provide submissions as to the form of the order and costs in a reasonable period of time.”

8. Thereafter the parties exchanged correspondence about draft orders. On 13 August 2021 the primary judge published reasons and pronounced four orders. The effect of Orders 1 and 2 is that the appellant is to pay 93 per cent of the respondent’s costs of “the Application” (a reference to the appellant’s application for costs assessment), those costs to be assessed on the standard basis on the District Court’s scale before 29 September 2020 and on the indemnity basis from 29 September 2020. The remaining orders are as follows:

“3. There be an assessment pursuant to s 335(2) of the Legal Profession Act 2007 (Qld) of the whole of the fees and disbursements charged by the respondent for the services provided and charged for by the respondent and described in Clause 10 of the Loan Facility Deed dated 19 February 2019, namely the legal costs charged in:

a.Tax Invoice Bill Ref: 12337 dated 17 September 2019, in the sum of $21,168.96 (Including GST); and

b.Tax Invoice Bill Ref 12381 dated 29 September 2019, in the sum of $16,883.90 (Including GST).

An independent costs assessor be appointed by the registrar of the court.”

9. In the course of the reasons for those orders, the primary judge observed:

“[1] The applicant in the proceeding sought to have twenty-seven of the respondent’s invoices for legal services assessed. I largely found in favour of the respondent and ordered assessment of only two of the invoices and that I would hear from the parties as to costs. [Val Eco Homes Pty Ltd (in liq) v Jason Hall t/a JHL Lawyers [2020] QDC 301 [32]].

…

[3] … As the application was partially allowed but largely disallowed, I find it appropriate that the costs order reflect this mixed outcome.

[4] … As I refused assessment for twenty-five of twenty-seven invoices, I find that the respondent should receive 93% of their costs.”

10. It is convenient at this point to identify my powers as a single judge of appeal in relation to the various applications currently before me in the Court’s civil jurisdiction. Those powers are given by s 118(7) of the District Court of Queensland Act, ss 44(1) and (2) of the Supreme Court of Queensland Act 1991 (Qld), and r 767 of the UCPR (which is authorised by s 30(4) of the Supreme Court of Queensland Act). Section 118(7) of the District Court of Queensland Act empowers a single judge of appeal to grant (with or without conditions considered appropriate) or refuse leave to appeal under s 118(3) of that Act. Under s 44(1) of the Supreme Court of Queensland Act, a single judge of appeal may exercise the powers of the Court of Appeal, “(b) to dismiss an appeal or other proceeding for want of prosecution or for other cause specified in an Act or a rule of court about the practices and procedures of the Court of Appeal” and “(c) to dismiss an appeal or other proceeding on the application of the appellant, applicant or plaintiff”. (Paragraph (c) is not applicable in relation to any aspect of the matters before me, but it is contextually relevant.) Section 44(2) provides:

“(2) A judge of appeal may exercise the powers of the Court of Appeal –

(a)to make an order or give a direction concerning the institution of an appeal or other proceeding in the Court of Appeal; or

(b)to make an order or give a direction in an appeal or other proceeding, other than an order or direction involving the determination or decision of the appeal or other proceeding.”

11. Rule 767 confers upon a single judge of appeal the powers of the Court of Appeal in “(a) a proceeding about a question of practice and procedure in the Court of Appeal” and “(b) an application in a civil proceeding for leave to appeal or for an extension of time to apply for leave to appeal”.

12. Rule 748 (which, by r 745(b), applies to an appeal from the District Court) requires a notice of appeal to be filed within 28 days after the date of the decision appealed from, unless the Court of Appeal orders otherwise. The appellant’s notice of appeal, filed on 10 September 2021, states that “the appellant appeals to the Court of Appeal against part of the order of the District Court made on 13 August 2021, dismissing the application and making orders 1 and 2.” If such an order was made on that date the appeal from that order was made within time. If such an order was made on 27 November 2020 the appellant requires a lengthy extension of time within which to appeal from that order. If no such order was made at any time the appeal is incompetent.

13. The respondent argues that on 27 November 2020 the primary judge dismissed the appellant’s application, otherwise than in relation to invoices 26 and 27, the time limited for appealing against that order expired 28 days thereafter, and no order concerning dismissal of the appellant’s application was made on 13 August 2021.

14. The evidence compels the conclusion that no order about the dismissal of the appellant’s application was made on 27 November 2020. Rule 660(1) provides that (except in relation to a proceeding under Chapter 13, Part 6, which is not relevant here), “An order is made by … (a) the order being pronounced in court by the person making the order”. Provision for filing an order is made in r 661. Under sub-rule (1), writing by a judge, judge’s associate, magistrate, judicial registrar or registrar of the date and terms of an order on a file or on a document on the file is sufficient proof of the making of the order, its date and terms, unless or until the order is filed. Under sub-rule (2) an order is filed in the court if a document embodying the order and the date it was made is drawn up by a party and signed by the registrar, but not all orders must be filed; sub-rule (3) provides that an order must be filed if the court directs it to be filed or a party asks for it to be filed. Sub-rule (4) provides that unless an order is filed, the order may not be enforced and no appeal may be brought against the order without the leave of the court to which the appeal would be made. The preclusion of enforcement of an order unless it is filed is qualified by sub-rule (5) in relation to the making of orders appropriate on default of an earlier order and the assessment of costs payable under an order.

15. Consistently with r 660, the provisions in r 661 assume that an order exists before it is recorded in a document and before any such document embodying the order is filed. Subject to a presently irrelevant exception, under r 660 an order is made when it is pronounced in court. Thus, for example, the provision in r 748 that, unless the Court of Appeal orders otherwise, a notice of appeal must be filed within 28 days after the date of a decision appealed from, requires in the case of a decision in the form of an order that the appeal be brought within 28 days from the day upon which the order was pronounced.

(a)the order against which the appeal purports to be brought was admittedly not made or it is not arguable that such an order was made;

(b)there is non-compliance with a practice direction or rules of court;⁹

(c)the purported appeal is out of time and no available remedy for that deficiency has been sought or there is no available remedy;¹⁰

(d)the appellant lacks standing to bring the purported appeal;¹¹

(e)the purported notice of appeal lacks legal sense, discloses no reasonable grounds of appeal or is otherwise incapable of amounting to an effective notice of appeal;¹² or

(f)the Court of Appeal lacks jurisdiction to hear the purported appeal.¹³

30. The appropriate orders in this respect are to dismiss the respondent’s application so far as it relates to the respondent’s argument summarised in [25] of these reasons, and to adjourn the appellant’s application for leave to appeal under r 661(4)(b)¹⁴ to the hearing of the appeal. (I note that at the hearing before me there was some discussion about the possibility that this aspect of the proceedings might be resolved by an application to the primary judge under “the slip rule” to correct what appears to have been an accidental omission from the orders made on 13 August 2021 of an express order that the application otherwise be dismissed.¹⁵)

31. The remaining ground of the respondent’s application is that the notice of appeal should be struck out on the ground that the appellant failed to seek leave to appeal pursuant to s 118 of the District Court of Queensland Act. In the circumstances of this appeal, the appellant requires leave under s 118(3) unless the appeal falls within s 118(2)(b). Section 118(2)(b) allows for an appeal from a final or interlocutory judgment of the District Court in its original jurisdiction to the Court of Appeal if the judgment “(b) relates to a claim for, or relating to, property that has a value equal to or more than the Magistrates Courts jurisdictional limit”. The appellant argues that its claim for referral to assessment of the respondent’s costs is “a claim … relating to … property” that has the necessary value. The relevant “property” is said to be the money claimed in the respondent’s invoices and the relevant “value” is said to be the total amount of those invoices. That total amount exceeds the monetary limit of the Magistrates Court’s jurisdiction.

32. The appellant’s claim relates to money claimed in the 27 invoices issued by and paid to the respondent. The recoverable amount of money, if any, must depend upon a determination upon quantum at a future hearing. In such a case, the reasoning in Coles Group Limited v Costin¹⁶ supports the respondent’s argument that upon the proper construction of s 118(2)(b) the amount of the invoices is not “property that has a value” equal to the amount claimed in the invoices. It is therefore reasonably arguable that the appellant requires leave to appeal under s 118(3).

33. Section 118(7) of the District Court of Queensland Act confers power upon a single judge of appeal to decide whether leave to appeal under s 118(3) should be granted or refused but, at least in a relatively simple proceeding of the present kind, the usual practice in appeals in the civil jurisdiction is that applications for leave are set down for hearing before a court constituted by three judges of appeal upon the footing that, if leave is granted, the appeal can be heard upon its merits at the same time. The basis upon which counsel for the respondent submits that this practice should be departed from in this case is that there is no arguable merit in the proposed appeal. In order to consider that submission I heard argument upon one of the issues in the proposed appeal.

Disposition and orders

37. At the hearing of the applications, counsel made submissions about costs. For the reasons I then gave, I would reserve the costs of each application.

38. The orders are:

(1)The respondent’s application be dismissed.

(2)The appellant’s application be adjourned to the hearing of the appeal.

(3)The costs of each of the applications be reserved.

Footnotes

1. See r 666 in relation to consent orders. ↩

2. See C v C [2001] QSC 126 at [8]. ↩

3. That view is reinforced by paragraph 6 of Practice Direction No 2 of 2010. See also r 775 of UCPR, which confers power upon the Court of Appeal to dismiss an appeal for want of prosecution if the appellant fails to comply with any step required by UCPR or a practice direction. ↩

4. See Di Iorio v Wagener [2016] QCA 346 at [14], which concerned an application for leave to appeal required by a different statute, rather than by UCPR. ↩

5. Lessbrook Pty Ltd (in liq) v Whap [2014] 2 Qd R 102 at 116 [50]; and see [7], [36], [45] – [49]. ↩

6. See Australian Energy Limited v Lennard Oil N.L.(No. 2) [1988] 2 Qd R 230; Mango Boulevard Pty Ltd v Spencer [2010] QCA 207 at [99] and footnote 86; Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674 at 689 [59] – [62], [64]; Athens v Randwick City Council (2005) 64 NSWLR 58 at 70 [29], 78 – 89 [132] – [140], and 80 [141]; Laming v Jennings [2018] VSCA 335 at 33 [123]. ↩

7. [2018] VSCA 180. ↩

8. [2018] VSCA 180 at [17] – [20], [24] – [32]. ↩

9. See, for example, Young v Crime and Corruption Commission [2018] QCA 55. ↩

10. See, for example, LMS Energy Pty Ltd v Kinsella [2016] QCA 178.