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[2025] QCA 134
respondent. The application for an extension of time in which to appeal was dismissed with costs.
The Court of Appeal refused to extend the deadline for Mark Khoury to appeal two costs orders. The first proposed appeal had no identified legal basis, came about six months late, and followed his message that he would not appeal. The respondent had relied on that message by having her costs assessed. The second proposed appeal also did not justify extra time: the applicant had not sought review of the assessment, and appealing the refusal of a stay could not undo the earlier costs order. The Court rejected the argument that leave to appeal a costs order had to be obtained before commencing an appeal, but that did not change the result.
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2,412 words · generated 07/10/2026
In Khoury v Kooij [2025] QCA 134, the Queensland Court of Appeal considered an application to extend the time for appealing two interlocutory costs orders. The applicant, Mark Khoury, was unsuccessful in seeking an extension. The Court dismissed the application with costs. The matter was decided on written submissions and evidence, without an oral hearing: the parties consented to that process, and the Court considered the application on 18 July 2025 before reserving its decision [2]–[3].
2 cited instruments linked from this judgment.
The first costs order was made on 27 November 2024. It required Mr Khoury to pay Ms Kooij’s costs of his unsuccessful interlocutory application, filed on 12 September 2024 [4]. The primary judge said that costs should follow the event, referred to conflicting evidence about capacity, and considered that the respondent had incurred unnecessary costs because of the application [5]. The Court of Appeal characterised the order as a discretionary costs decision consistent with the general principle that costs follow the event, and as compensatory in purpose [6].
The applicant told the respondent’s solicitor on 16 December 2024 that he would not appeal. The ordinary 28-day period expired on 18 December 2024. The applicant did not explain why, having decided not to appeal before that deadline, he later sought an extension approximately six months after the order [11]. In the meantime, the respondent had her costs assessed [12].
The second costs order was made on 11 April 2025. It required the applicant to pay costs of an unsuccessful application to stay a registrar’s order made after assessment of the respondent’s costs under the first order [15], [19]. The registrar’s order took effect as a judgment for those costs [16]. The stay application relied on UCPR r 740(3), which permits the Court to stay enforcement of a judgment pending review of the assessment on which it is based [15]. The applicant had not initiated a review of the assessment [23].
The applicant said that he attempted to file a notice of appeal electronically on 9 May 2025. The Court recorded that the registry did not offer electronic filing, so no document was filed that day [30]. The extension application was filed on 27 May 2025 [2]. The Court ultimately refused extra time for both proposed appeals, but separately rejected the respondent’s argument that the proposed appeals were incompetent because leave to appeal costs orders had not been obtained before commencement [35]–[38].
The Court addressed each order separately. For the first order, it found that the proposed grounds did not show a basis for appellate intervention. The applicant described the costs order as punitive or contrary to equitable principles and argued that he had not received an itemised costs statement or estimate before the order. The Court rejected those points, noting that the costs order was a discretionary decision and that the costs assessment process is provided for after a costs order has been made [8] and footnote 2. It also rejected the argument that self-representation or permission to appear remotely displaced the general principle that costs follow the event [9].
The Court considered the appeal principles in House v The King (1936) 55 CLR 499 at 504–505. It said the applicant had not identified an apparent error in the primary judge’s exercise of discretion, a wrong principle, an irrelevant consideration, a factual mistake, or a material consideration that had been overlooked [10]. The judgment does not suggest that financial hardship could never be relevant to a costs decision. Rather, it concludes that the applicant had not identified a recognised basis for challenging this particular exercise of discretion [10].
The delay and the respondent’s reliance also weighed against extending time for the first appeal. The Court described the applicant’s decision not to appeal, made before the appeal period expired, as an unsatisfactory explanation for the later delay [11]. The respondent had acted on that position by having her costs assessed. Had an appeal been commenced within time, the assessment could have been deferred; the applicant had not offered to compensate the respondent for the expenses arising from the assessment [12]–[13]. The combination of weak proposed grounds, unexplained delay and detrimental reliance supported refusal [14].
The second order concerned the failed stay application. The applicant’s proposed grounds referred to procedural unfairness, hardship and equity [21]. The Court considered that the language did not establish legal substance in the circumstances. The key difficulty was that r 740(3) concerns a stay pending review of the assessment, but the applicant had not initiated such a review, and his grounds did not concern the assessment [23]. The Court considered that the stay application appeared to be an attempt to undo the first order indirectly, although no appeal or application to set it aside was then before the primary judge [17]–[18].
That mattered to the utility of an appeal. The Court said that an appeal from the refusal of the stay could not achieve the apparent purpose of “backtracking” the first order [24]. It therefore found no merit in an appeal against the whole of the second order [25]. The Court did not treat the possible indemnity-costs point as entirely unarguable. It observed, without reaching a concluded view, that a challenge limited to the indemnity basis “seems arguable” on an impressionist analysis [29]. But it considered that the likely cost of pursuing such an appeal could exceed the difference between indemnity and standard assessment [29].
The final consideration was procedural economy. The Court referred to the UCPR objective of avoiding undue delay, expense and technicality and facilitating the just and expeditious resolution of real issues at minimum expense [34]. In the Court’s assessment, the narrow remaining possible appeal was not a real issue in the substantive proceeding, and extending time would not serve the objective of avoiding undue expense [34]. Although the Court noted that the delay concerning the second order was short and that no apparent detriment to the respondent would result from an extension [32]–[33], it concluded that those matters did not outweigh the lack of merit and utility [34].
The judgment applies procedural rules and principles rather than announcing a broad change in the law. It treats the starting point for interlocutory costs as the general rule that costs follow the event, citing UCPR r 681 [6] and reaffirming that the principle applies to represented and unrepresented parties, including a party granted leave to appear remotely [9]. It also applies the established approach to appellate review of discretionary decisions, referring to House v The King [10].
On indemnity costs, the Court refers to Grice v State of Queensland [2005] QCA 298 at [6], which cited Di Carlo v Dubois [2002] QCA 225 at [35]–[38]. The proposition stated in this judgment is that an indemnity order ordinarily requires circumstances warranting departure from standard-basis assessment, with some evidence of unusual circumstances or unreasonable conduct [27]. The Court then assessed the primary judge’s identified conduct in that framework, including repeated attempts to raise matters already determined, serious allegations without a clear factual foundation, irrelevant material, and pursuit of an application whose deficiencies had been pointed out [28].
The judgment also clarifies the timing of leave under s 64 of the Supreme Court of Queensland Act 1991 for an appeal from a costs order. The respondent argued that the proposed appeals were incompetent because leave had not been obtained before a notice of appeal was filed [36]. The Court rejected that argument: leave need not be obtained before a party commences an appeal, but must be obtained before the appeal is heard and determined [37]. It described this as consistent with Keane JA’s obiter opinion concerning the predecessor provision in Morrison v Hudson [2006] 2 Qd R 465 at [18], and referred to the Court’s recent observation in Trouton v Trouton [2025] QCA 128 at [4] [37].
The result therefore leaves the underlying rules intact while giving a practical statement about the timing of leave. The judgment does not hold that leave is unnecessary. It distinguishes the time for commencing an appeal from the point by which leave must be obtained for the appeal to be heard and determined [37]. Nor did that procedural clarification rescue this application: the extension was refused on its substantive and procedural circumstances [38]–[39].
At [6], the Court describes the first costs order as compensating the successful respondent, “to some extent”, for expenses she would not have incurred if the unsuccessful application had not been brought. In plain English, the Court treated the order as an ordinary costs consequence, not a penalty.
At [10], the Court says the applicant had not identified an apparent error in the discretionary decision or another recognised error such as applying a wrong principle or overlooking a material consideration. That explains why describing the outcome as unfair or raising hardship did not, by itself, establish a viable challenge to the order.
At [11], the Court calls the decision not to appeal “before the period for filing an appeal expired” an unsatisfactory explanation for the later delay. The point is specific to the chronology: the applicant had communicated that he would not appeal, and the respondent then proceeded with costs assessment [11]–[13].
At [23], the Court links r 740(3) to review of the assessment. Because the applicant had not initiated that review, and the stay grounds did not concern the assessment, the Court found no merit in the stay application. In plain English, the stay mechanism was not a means to reopen the underlying costs order on the grounds advanced.
At [29], the Court says a limited indemnity-basis appeal “seems arguable”, but expressly qualifies that observation as an impression rather than a concluded view. It then weighs practical utility, observing that appeal costs would likely exceed the difference between the two assessment bases. The passage is not a final finding that such an appeal would succeed.
At [37], the Court states that leave under s 64 need not be obtained before an appeal is commenced, but must be obtained before it is heard and determined. The respondent’s timing objection therefore failed, though the extension application itself was still dismissed.
The reasoning is most directly relevant to applications for extra time to appeal interlocutory costs orders where the proposed grounds do not identify an apparent error in the exercise of discretion. The Court focused on the grounds actually advanced, including claims of punishment, unfairness, hardship and lack of prior costs information, and concluded that they did not establish an appellate basis on the facts before it [8]–[10].
The first-order reasoning also concerns situations where an applicant has told the other party that no appeal will be brought, the other party relies on that communication by progressing costs assessment, and the applicant later seeks an extension without a satisfactory explanation or offer to compensate for resulting expense [11]–[14]. The judgment does not prescribe a universal rule that such communications always bar an extension. It treats the communication, reliance, timing and lack of explanation as relevant circumstances in this application.
The second-order reasoning applies to the particular relationship between a stay under UCPR r 740(3) and review of an assessment. The Court considered the application where no assessment review had been initiated and the stay grounds instead sought, in substance, to revisit the earlier costs order [17]–[18], [23]–[24]. It also speaks to proposed appeals with limited practical value: even an arguably available point may not justify extra time where it is not a real issue in the substantive proceeding and would not advance the objective of minimising expense [29], [34].
Finally, the s 64 discussion is relevant where a party challenges a costs order and the timing of leave is disputed. The judgment distinguishes commencement of an appeal from the later requirement to obtain leave before the appeal is heard and determined [37].
The judgment itself was delivered on 29 July 2025, so it cannot report how later courts treated Khoury v Kooij. The supplied text contains no subsequent judicial treatment of this decision. No conclusion about its later status, adoption, distinction or application can be drawn from the judgment provided.
It does identify authorities used by the Court. House v The King is applied as the established framework for identifying an error in discretionary decision-making [10]. Grice and Di Carlo are cited in relation to indemnity costs [27]. Morrison v Hudson is referred to for Keane JA’s obiter view on the predecessor to s 64 [37]. Trouton v Trouton is cited for the observation that requiring leave before filing would generate many extension applications in costs-only appeals [37]. These are authorities discussed in Khoury, not later treatment of Khoury itself.
The judgment does not determine the merits of a hypothetical appeal confined to the indemnity basis of assessment. Its observation that such an appeal “seems arguable” is expressly impressionistic and non-conclusive [29]. Nor does the decision decide whether the indemnity assessment in this matter was ultimately correct; the extension was refused before such an appeal could be heard.
The decision also does not set out a general test or exhaustive list for when a respondent’s reliance on a stated intention not to appeal will justify refusing an extension. It weighs the particular communication, subsequent costs assessment, lack of explanation and absence of an offer to compensate for expenses [11]–[14]. How those matters would be weighed where the communication was ambiguous, the respondent did not rely on it, or the applicant offered compensation is not addressed in the supplied reasons.
The Court did not decide the merits of any unfiled assessment review, nor did it determine what grounds might properly support one. Its conclusion was narrower: no review had been initiated, and the proposed stay application did not concern the assessment as required by the procedural setting of r 740(3) [15], [23].
Finally, the s 64 discussion resolves the respondent’s argument about when leave must be obtained, but the judgment does not elaborate on the process for obtaining leave or the criteria for granting it. The holding is limited to timing: leave need not precede commencement, but is required before the appeal is heard and determined [37].
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Khoury v Kooij [2025] QCA 134
PARTIES: MARK KHOURY / (applicant) / v / NIRA KOOIJ / (respondent)
FILE NO/S: Appeal No 2100 of 2025 / SC No 3735 of 2024
DIVISION: Court of Appeal
PROCEEDING: Application for Extension of Time
ORIGINATING COURT: Supreme Court at Brisbane – Unreported, 27 November 2024 (Muir J); Unreported, 11 April 2025 (Williams J)
DELIVERED ON: 29 July 2025
DELIVERED AT: Brisbane
HEARING DATE: Heard on the papers
JUDGES: Mullins P, Bradley JA and Morrison AJA
ORDER: The application for an extension of time in which to appeal is dismissed with costs.
CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the applicant seeks an extension of time for filing a notice of appeal against two interlocutory orders made by judges in the trial division – where the Court heard the application on the papers – whether the extension of time should be granted / Uniform Civil Procedure Rules 1999 (Qld), r 681, r 740
COUNSEL: No appearance for the applicant, the applicant’s submissions were heard on the papers / J D Byrnes for the respondent, the respondent’s submissions were heard on the papers
SOLICITORS: No appearance for the applicant / Fox & Company Lawyers for the respondent
THE COURT: The applicant seeks an extension of time for filing a notice of appeal against two interlocutory orders made by judges in the trial division.
The applicant filed his application in the Court of Appeal on 27 May 2025. By consent, the parties presented their respective arguments and evidence solely in writing, and the application was listed for a decision without an oral hearing.
The Court considered the application on 18 July 2025 and reserved its decision.
The first interlocutory order
The first order from which the applicant would appeal was made on 27 November 2024. It was an order that the applicant pay the respondent’s costs of an application filed by the applicant on 12 September 2024. By that application, the applicant had sought interlocutory orders. He was entirely unsuccessful. The application was dismissed.
In short reasons, the primary judge explained:
“In this case I can see no reason that costs ought to not follow the event. This is a case where, in my view, the applicant refuses to accept that there is conflicting evidence in relation to this issue of capacity and where every attempt has been made to resolve the application. Unnecessary costs have been incurred by the respondent and it is appropriate, and I order, that the applicant pay the respondent’s costs of the interlocutory application.”
The merit of the proposed grounds of appeal
The applicant’s proposed grounds of appeal in respect of the first order have no merit.
His proposed ground that the first order was punitive or penal is wrong. So is his contention that the first order was contrary to equitable principles. An alleged lack of information about the total legal fees incurred by the respondent is not a basis to set aside a costs order. His contention that he was denied procedural fairness by the absence of an itemised costs statement or an estimate of costs, before the first order was made, is also wrong. So too is his contention that the principles of natural justice were undermined by the lack of an opportunity to assess the “legitimacy and proportionality” of the respondent’s costs before the first order was made.2
The general principle that costs follow the event applies equally to represented and unrepresented parties in civil litigation in the Court. It also applies to a party granted leave to appear remotely. Those proposed grounds of appeal have no merit.
Whether her Honour could have (or another judge would have) made an order different to the first order, on the basis that the applicant was suffering financial hardship, is not a sound ground of appeal. The applicant has not identified an apparent error in her Honour’s exercise of the discretion, or a wrong principle, consideration of an extraneous or irrelevant matter, a mistake of fact, or a material consideration not taken into account. Nothing in the proposed amended notice of appeal could found a successful challenge to the first order in accordance with the established principles in House v The King.3
The explanation for the delay
The detriment to the respondent
After the applicant advised the respondent that he would not appeal the first order, the respondent had her costs assessed. That process was completed before the applicant sought leave to appeal.
Had the applicant sought leave to appeal within 28 days of the first order, the respondent could have deferred the costs assessment until after an appeal was heard and determined. The applicant has not offered to compensate the respondent, permanently or contingently, for the expenses she incurred when there was to be no appeal.
Conclusion on an extension of time to appeal the first order
The second order
The second order was made on 11 April 2025. It was an order that the applicant pay the respondent’s costs of an application he filed on 26 March 2025. By that application, the applicant had sought a stay of a registrar’s order made on 11 March 2025. The registrar’s order was made having regard to a certificate of assessment of the respondent’s costs payable by the applicant under the first order.4
The registrar’s order took effect as a judgment of the Court.5 Relevantly, it is a judgment for the costs the applicant was ordered to pay pursuant to the first order.
The applicant sought the stay under r 740(3), which authorises the Court to stay enforcement of the judgment “pending review of the assessment” on which it was based. The grounds on which the applicant pressed his stay application did not concern the assessment. The primary judge noted:
“What is evident from the material is that the applicant seeks to raise many allegations in respect of the original hearing before Justice Muir, including allegations of alleged evidence tampering and various other irregularities, concerns about whether the Court has power to make the [first order] on the basis that he ‘did nothing wrong’ using his words, and also an apparent failure by the Court to regulate behaviour by the lawyers involved on behalf of the respondent.
…
It appears from the material relied upon by the applicant that whilst there is no appeal or application to set aside [the first order], the material seeks to raise various issues through the back door, in effect, to justify the application for a stay.
In oral submissions today, the applicant has expressed that he seeks, from the Court today, in effect that the decisions that have been made be ‘backtracked’ to enable him to be able to be provided with a costs statement of the costs of the lawyers acting on behalf of the estate. Once he has had the opportunity to consider that further, then further consideration can be given to the future conduct of this matter. This fails to appreciate what has already been determined by the Court by both Justice Muir and the Registrar, and also the nature of the application which is before the Court today.
…
As there has been no appeal, and there is no basis before this Court today for the [first order] to be set aside [, t]he [first order] stands and is not impugned despite the various complaints which are raised by the applicant.
To the extent that the application by the applicant does seek, in some way, to challenge or take issue with the decision of Justice Muir, I find that there is no basis for that.
…The complaint seems to be that the applicant sees that he has done nothing wrong, and that the Judge, to some extent, was misled by the conduct of others, but again there is no proper basis before the Court to go behind the order of Justice Muir.
…
As indicated previously, the applicant, by this application, is seeking a form of relief which the Court cannot grant. On the application before me, there is no ability for me to, in effect, ‘backtrack’ the orders that have already been made.”
As noted above, three months before filing his stay application, the applicant had notified the respondent that he would not appeal the first order. When the stay application was heard before the primary judge, the applicant had not sought leave to appeal the first order. He gave no indication that he intended to do so. It appears the applicant was seeking to use the availability of a stay under r 740(3) to undo the effect of the first order, having decided not to appeal.
The applicant was entirely unsuccessful in the stay application. His application was dismissed.
Like the first order, the second order was interlocutory, and a discretionary decision. The above observations about such orders apply to the second order. The second order also reflected the same considerations of fairness and policy referred to above at [6]. However, the second order entitles the respondent (as the successful party) to be compensated for her costs to a greater extent than the first order, as her costs of the stay application are to be assessed on the indemnity basis, rather than on the standard basis.
The merits of the proposed grounds of appeal
“The refusal to stay the costs order gave rise to procedural unfairness and imposed disproportionate hardship on the [Applicant], who is a self-represented litigant acting in a lawful fiduciary capacity. The Court failed to consider the imbalance created by this hardship, thereby breaching principles of fairness and equity.”
As in his other proposed grounds of appeal, the applicant uses terms with a distinct legal meaning to express a case or a ground without any legal substance.
The position remains that the applicant has not initiated a review of the assessment of the respondent’s costs, which he was ordered to pay by the first order, and which are the subject of the Registrar’s order. It follows that, whatever the applicant intended to convey by his proposed grounds of appeal, there was and is no merit in the applicant’s application for a stay under r 740(3).
If, as it appeared to the primary judge, the applicant’s purpose in seeking a stay was to “backtrack” or undo the first order, then the pursuit of an appeal from the second order could not achieve that purpose and would have no utility.
There is no merit in an appeal against the whole of the second order.
The applicant’s proposed ground that there was a “miscarriage of judicial discretion” characterises an indemnity costs order as “disproportionate” and “punitive”. His contention that the order was “unsupported by findings of misconduct or unreasonableness” appears to assume that those bases are the only ones that justify such an order.
This Court has observed that, ordinarily, an order for indemnity costs would be made only where circumstances warrant a departure from the usual order, by which the costs would be assessed on the standard basis, and some evidence of unusual circumstances or unreasonable conduct.6
The primary judge’s reasons identify the following conduct by the applicant as “sufficient to form a level of satisfaction that it is appropriate to award costs on an indemnity basis”:Raising at the stay hearing numerous issues repeatedly in relation to matters that were heard and determined by Justice Muir;Raising serious and wide-ranging allegations of impropriety, including fraud, without clearly outlining the factual foundation for them;Making veiled statements in submissions about complaints to authorities in relation to conduct of the proceeding, with no apparent proper foundation;Increasing the length of the hearing by referring to irrelevant material;Pursuing the stay application when its deficiencies had been pointed out in writing more than a month before the applicant filed it; andProceeding with the stay application where the precursor of the application had been identified as “doomed to fail”.
On an “impressionist analysis”, without expressing any concluded view, an appeal from the second order, limited to the indemnity basis of assessment, seems arguable. Again, as a matter of mere impression, the costs the parties would incur in such an appeal would likely exceed the difference between the respondent’s costs of the stay application assessed on the indemnity basis and those costs assessed on the standard basis.
The explanation for the delay
The applicant filed his application for leave to appeal 45 days after the second order was made. He says he had “attempted to file” a notice of appeal electronically on 9 May 2025, 28 days after the second order. The registry does not offer electronic filing. So, no document was filed that day.
The applicant’s communications with the registry at that time, which were copied to the respondent’s solicitor, show that he requested a copy of the second order by an email he sent at 4.25 pm on 9 May 2025, and that he sent the first proposed notice of appeal to the respondent’s solicitor as an attachment to an email at 8.10 pm that day. He told the respondent’s solicitor that he had filed the notice of appeal that day and that the email was “formal service” of it.
The applicant’s delay in commencing the appeal process was short at about 17 days. Even with an explanation that is, in some respects, less than satisfactory, that of itself should not result in a refusal to extend time to seek leave to appeal.
The detriment to the respondent
Conclusion on an extension of time to appeal the second order
Is the application “incompetent”?
The applicant’s request for an extension of time should be refused for other reasons. So, the respondent’s submission about another basis to refuse an extension may be considered briefly.
The respondent submitted that the proposed appeal against the first and the second orders was “incompetent” because the applicant had not obtained the leave of either primary judge under s 64 of the Supreme Court of Queensland Act 1991 before the filing of a notice of appeal.
The requirement for leave under s 64 need not be satisfied before a party commences an appeal. A party who wishes to pursue an appeal from a costs order must obtain leave to do so before the appeal is heard and determined. This is consistent with the opinion about the predecessor to s 64, expressed obiter dictum, by Keane JA in Morrison v Hudson.7 As this Court observed in recently in Trouton v Trouton:
“There would be many applications for extension of time to appeal, if the leave of the primary judge or another judge of the Trial Division had to be obtained pursuant to s 64(1) for an appeal only in relation to costs before the notice of appeal was even filed in this Court and therefore within 28 days of the date of the order for costs.”8
Final disposition
The application for an extension of time in which to appeal is dismissed with costs.
Uniform Civil Procedure Rules 1999 (Qld) (UCPR), r 681. ↩
Chapter 17A of the UCPR provides for procedural fairness in the cost assessment process after a costs order has been made. ↩
(1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ). ↩
Pursuant to UCPR, r 740(1). ↩
See UCPR, r 740(2). ↩
Grice v State of Queensland [2005] QCA 298 at [6] (McMurdo P; McPherson and Williams JJA agreeing), citing Di Carlo v Dubois [2002] QCA 225 at [35]-[38] (White J; Williams JA and M Wilson J agreeing). ↩
[2006] 2 Qd R 465 at [18]. ↩
[2025] QCA 128 at [4] (Mullins P and Flanagan and Brown JJA). ↩
Khoury
Kooij [2025] QCA 134
(1936) 55 CLR 499
The application for an extension of time in which to appeal was dismissed with costs.