Puryer v Webb & Ors

SUPREME COURT OF QUEENSLAND

CITATION: Puryer v Webb & Ors [2008] QCA 246

PARTIES: TERENCE ROBERT PURYER (applicant/appellant) v JOHN P WEBB (first respondent/not a party to the appeal) WILLIAM J RANDALL, SM (second respondent/not a party to the appeal) SHARLENE GAY COOMBS (third respondent/respondent) RENT CENTRE SERVICES PTY LTD ACN 105 896 688 (fourth respondent/not a party to the appeal)

FILE NO/S: Appeal No 2646 of 2008 / SC No 7232 of 2006

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 22 August 2008

DELIVERED AT: Brisbane

HEARING DATE: 31 July 2008

JUDGES: McMurdo P, Keane JA and Wilson J / Judgment of the Court

ORDER: Appeal dismissedApplication for an extension of time to appeal in relation to the costs order below refusedDirect that the parties make written submissions in accordance with Practice Direction No 3 of 2007 as to whether this Court should fix the costs of the appeal, and, if so, the amount of such costsDirect that the papers in this matter be sent to the Legal Services Commissioner for his consideration

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – JUDGE MISTAKEN OR MISLED – GENERALLY – where the primary judge set aside earlier orders made by another judge of the Supreme Court in relation to the proceedings on the grounds that they were made in circumstances in which the court had been misled as to the relevant facts – where the original application was made ex parte – where the appellant submitted that he had placed all relevant material before the judge at the time the orders were made – where material adverse to the appellant's case was never specifically brought to the attention of the judge by the appellant – whether the primary judge erred in finding that the earlier orders were tainted by a misleading of the court – whether the primary judge erred in exercising his discretion to have the orders set aside / LANDLORD AND TENANT – RENEWALS AND OPTIONS – EXERCISE OF OPTION – RIGHT TO EXERCISE OPTION – GENERALLY – where the appellant and respondent were co-tenants under a lease – where the option to renew the lease was exercisable by either tenant – whether the exercise of the option to renew by the appellant without the consent of the respondent was binding upon the respondent / ESTOPPEL – FORMER ADJUDICATION AND MATTERS OF RECORD OR QUASI OF RECORD – FORMER ADJUDICATION – DECISIONS OF INFERIOR COURTS AND OTHER SUBORDINATE TRIBUNALS – where the facts relating to this matter were previously the subject of a hearing in front of the Small Claims Tribunal – whether the decision of the Small Claims Tribunal gave rise to an issue estoppel on the relevant rights and liabilities as between the appellant and respondent / COSTS – APPEAL AS TO COSTS – where the primary judge ordered the appellant to pay the respondent's costs on the indemnity basis – where the appellant sought leave to appeal against the order as to costs – where the application was made out of time – whether the circumstances warrant a granting of an extension of time within which to appeal against the costs order made below / Residential Tenancies Act 1994 (Qld), s 254, s 255 / Small Claims Tribunal Act 1973 (Qld), s 18 / Supreme Court Act 1995 (Qld), s 253 / Uniform Civil Procedure Rules 1999 (Qld), r 667(2)(a) / Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655; [1909] HCA 87, cited / Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45, cited

COUNSEL: The appellant appeared on his own behalf / D W Williams for the respondent

SOLICITORS: The appellant appeared on his own behalf / P M Lee & Co for the respondent

THE COURT: It is usually desirable to state, at the outset of reasons for judgment, the issue which arises for the Court's decision. In this case, however, the course of the proceedings which have led to this appeal is so complex that there is no alternative but to summarise the course of the proceedings which culminated in the decision of Dutney J from which this appeal is brought.

The appellant, Mr Puryer, is a lawyer. He informed the Court that he does not hold a current practising certificate. He appeared for himself below and in this Court. He and the respondent, Ms Coombs, lived together until their relationship terminated in acrimonious circumstances in mid-2006. Until then, they had lived together in a house at Hawkesbury Crescent, Wakerley as tenants under a 12 month lease made on 2 February 2006. The lease contained the following term: "Each tenant may by notice in writing exercise an option to renew the lease for a further 12 months."

On about 12 July 2006, Ms Coombs offered to pay to the letting agent of the lessor an amount representing 40 per cent of the rental payable for the unexpired balance of what was, at the time of payment, a 12 month lease. Ms Coombs' offer reflected the circumstance that, to that time, she had contributed 40 per cent to the outgoings of the house. On the same day, Puryer purported to exercise the option to renew the lease from 3 February 2007 to 2 February 2008. Ms Coombs notified Mr Puryer immediately that she did not consent to any renewal of the lease. Mr Puryer remained in occupation of the house.

The proceedings in the Small Claims Tribunal

Ms Coombs promptly commenced proceedings in the Small Claims Tribunal seeking to be released from her obligations under the lease on the basis of excessive hardship, she being adversely affected by a medical condition said to be exacerbated by the stress of living with Mr Puryer. This proceeding was identified as Small Claims Tribunal Claim No 4011 of 2006.

On 28 July 2006 the Small Claims Tribunal made an order "removing" Ms Coombs from the lease. This order was made without notice of the proceedings to Mr Puryer. On the same day, Ms Coombs paid 40 per cent of the rent payable until 2 February 2007 to the lessor's leasing agent.

On 7 February 2007, in proceedings in the Small Claims Tribunal between the letting agent and Mr Puryer, the lease was terminated on the ground of rental arrears. These proceedings were referred to as Small Claims Tribunal Claim No 0450 of 2007.

The proceedings in the Supreme Court

On 25 August 2006 Mr Puryer commenced proceedings in the Supreme Court for judicial review of the July 2006 decision of the Small Claims Tribunal. Mr Puryer's application sought to have the Small Claims Tribunal's order quashed or reconsidered.

There was a directions hearing in relation to Mr Puryer's application on 22 December 2006. Mr Puryer obtained Ms Coombs' consent to abide the orders of the court, and, subject to one qualification, to take no further part in the proceeding. On that day, Muir J ordered inter alia:

"…

That on or before 23rd January 2007 each of the third Respondent and the fourth Respondent do produce to the Applicant the disclosed documents for the purpose of inspecting and copying.

That on or before 23rd January 2007 the First Respondent produce Small Claims Tribunal file number 4011/06 for examination by the Applicant and that the Applicant be allowed to make a copy thereof or be provided with a copy thereof on such terms and conditions as the First Respondent may determine.

Subject to paragraphs 1 and 2 hereof, each of the Third Respondent and the Fourth Respondent having undertaken to abide the order of the Court, is granted leave to withdraw from taking further part in the proceedings whilst preserving the right to be heard on the question of costs, should that issue arise.

…"

Ms Coombs was referred to in this order as the Third Respondent.

Mr Puryer amended his proceedings in the Supreme Court in February 2007 to include a claim for relief in respect of the February 2007 order of the Small Claims Tribunal.

The orders made by Daubney J

Almost one year later, on 13 December 2007, on the application of Mr Puryer, Daubney J made the following orders:

"1.By consent, the Fourth Respondent having undertaken to abide the order of the Court, is granted leave to withdraw from taking further part in the proceedings whilst preserving the right to be heard on the question of costs, should that issue arise.

The order of the Small Claims Tribunal at Brisbane in Small Claims No 4011/06 made on 28th July 2006 be set aside and the Claim therein be dismissed.

The order of the Small Claims Tribunal at Brisbane in Small Claims No 0450/07 made on 7th February 2007 be set aside and the Claim therein be dismissed.

The Third Respondent indemnify the Applicant against and pay to the Applicant one half of the [sic] each of the rent, outgoings and services paid or payable by the tenants and other obligations pursuant to the tenancy agreement dated 25thJanuary 2006 and made between the Fourth Respondent of the first part and the Applicant and the Third Respondent of the second part in relation to the property situated at 19 Hawkesbury Crescent Wakerley AND pursuant to each renewal of the tenancy agreement pursuant to an option to renew.

(a)This order shall be served personally on the Third Respondent.

(b)The operation of Order 4 shall be stayed until 14 days after the date of personal service of this order on the Third Respondent. Any application by the Third Respondent during that 14 day period for these orders to be vacated or varied shall be made on two (2) days written notice to the Applicant.

Each party otherwise have liberty to apply, on 4 clear days notice to each other party;

There be no order as to costs."

The order which gave rise to the application to Dutney J is Order 4 of the orders made by Daubney J. This order was not sought by Mr Puryer in his initial application to the Supreme Court, and, it might be said, was inconsistent with the terms of the consent order made by Muir J on 22 December 2006. The amendment to Mr Puryer's application to include a claim for the relief in Order 4 was not made until 12 December 2007. A copy of the amended application seeking that relief was not served by Mr Puryer on Ms Coombs until the afternoon of 12 December 2007. At that time, Ms Coombs' attention was not drawn to the significance of the new claim for relief against her, a claim which was distinctly inconsistent with the spirit, if not the letter, of the contract reflected in the consent order of 22 December 2006. Ms Coombs did not appear on 13 December 2007 to oppose the making of this order.

Before Daubney J, Mr Puryer relied upon an affidavit filed on 12 December 2007 in which he deposed, inter alia, as follows:

"As each of the respondents has agreed to withdraw from these proceedings I wish to finalise the proceedings and issues between the parties. By my letter dated 10th December 2007 I have written to each of the respondents giving notice of the new time for directions, namely 10 a.m. on Thursday the 13th of December 2007, at the Supreme Court of Brisbane. By my further letter dated 11 December 2007 I have attached an amended application and also informed each of them that I would not seek to obtain orders for costs against any of them save for an order against the first respondent and the second respondent in the fixed sum of $529 … Further, the Third Respondent has not paid any contribution to rent outgoings or other obligations under the tenancy agreement since 28th July 2006."

We pause here to note that, in this Court, Mr Puryer asserted that he read before Daubney J a number of affidavits, two of which exhibited a letter dated 31 July 2006 from the letting agent to him referring to Ms Coombs' payment in advance of the 40 per cent of the rent for the balance of the term until February 2007. Mr Puryer relies on these exhibits as demonstrating that he drew the attention of Daubney J to the circumstance that Ms Coombs had in fact discharged 40 per cent of the rent of the house for the unexpired balance of the initial term of the lease.

The transcript of the hearing before Daubney J shows that Mr Puryer handed up a list of the material which he wished to read to his Honour. It is, however, clear from the transcript that his Honour's attention was not drawn to the letter of 31 July 2006. Moreover, the transcript records the following exchange:

"HIS HONOUR: Mr Puryer, I know you've written to the third respondent saying you're not going to be seeking a costs order against them, but have you made it clear that you are seeking the order for indemnity against them?

APPLICANT: Yes, your Honour, I've done that by way of the amended application.

HIS HONOUR: I know you've given them a copy of the amended application but have you given them a copy of the draft order, for example?

APPLICANT: I haven't, it's just been framed this morning, your Honour, but it's in terms of - but I've given notice of the proceedings to the amended application and that amended application, I think, goes back to February, your Honour.

HIS HONOUR: I know. I'm just a little uncomfortable that they may be labouring under a misapprehension that all that's happening today is that you're not seeking a costs order. Do you know what I mean?

APPLICANT: Well that was the terms of the position between the parties the agreement that I wouldn't seek costs orders against those parties. That's the third respondent and also the fourth respondent. But she's been given notice - that notice, your Honour, was given as far back as February of this year, in terms of the amended application, and further also-----

HIS HONOUR: Well, you see, back on 17th October Carter Newell wrote to you and said, 'We enclose the consent order - oh sorry, that's Carter Newell. Who's the third respondents?

APPLICANT: The third respondent is Sharleen Coombs.

HIS HONOUR: Yes, but who was she represented by?

APPLICANT: She's self-represented, your Honour. Your Honour, the indemnity flows from the terms of the tenancy agreement-----

HIS HONOUR: Yes, I understand that. What I'm concerned about is that people have proper notice of order that are about to be made against them.

APPLICANT: Your Honour, I've sent the amended application to the respondents several times now. It's not for me to advise-----

HIS HONOUR: Where do I find her consent to withdraw?

APPLICANT: Your Honour, that was made by consent originally on 22nd December 2006 before Muir J. Your Honour I'd had that order conformed for sealing and despite some requests I didn't get that back but I have a copy of the order with-----

HIS HONOUR: No I've got it here in front of me. But the concern that I've still got is that she may not understand that you are actually seeking an order that will bind her to pay money to you by way of an indemnity.

APPLICANT: Your Honour, it flowed in any case - I mean it was a natural consequence of her application. The application that was originally brought was in the Small Claims Tribunal for the lease - for her to be removed from the lease.

HIS HONOUR: I've seen that.

APPLICANT: That Tribunal didn't have jurisdictional power to do that for a number of reasons, one was jurisdiction and absence of - my application was then brought to review that decision and to set it aside and consequential orders as a result. And one of the consequential orders is that she is, of course, still responsible under the terms of that tenancy agreement.

Now she's been given notice of it, your Honour. I mean I can't do more than give her notice of the application. It's not for me to advise her to what her rights or responsibilities are. And if I take your Honour to the affidavit sworn

HIS HONOUR: Yes, which one, Mr Puryer?

APPLICANT: My affidavit filed yesterday, your Honour.

HIS HONOUR: Yes.

APPLICANT: In paragraph 3 by my letter dated - second sentence, 'By my letter dated 10th December 2007 I've written to each of the respondents giving notice of the new time for direction, namely 10 a.m. Thursday 13th December 2007, Supreme Court of Brisbane. By my further letter dated - attached an amended application also informing each of them that I would not seek to obtain orders for costs against any of them, save for an order-----"

It is clear that the reference by Mr Puryer to "paragraph 3" is to the paragraph of his affidavit of 12 December 2007 set out at paragraph [12] above. It is also clear from the transcript of the hearing that Mr Puryer did not inform Daubney J that Ms Coombs had, in fact, paid 40 per cent of the balance of the rent payable under the original term of the lease. There is nothing to suggest that the attention of Daubney J was actually drawn to the terms of the letter of 31 July 2006. Having regard to the evident concern of Daubney J in relation to Mr Puryer's claim for indemnity against Ms Coombs, it is inconceivable that his Honour would have made Order 4 if he had been informed that, in fact, Ms Coombs had paid 40 per cent of the rent payable for the balance of the original term, being the percentage which she considered was agreed between Mr Puryer and herself.

It should also be noted that the transcript shows that Mr Puryer assured Daubney J that Ms Coombs had been given notice of his amended application in February 2007. Having regard to the context in which this assurance was given, it is difficult to see how it would not have been taken to refer to the application for the relief granted by Order 4 – which, of course, was not contained in the amended application filed by Mr Puryer in February 2007. Unfortunately, the transcript of the hearing before Daubney J was not available when Ms Coombs' application came before Dutney J; and, of course, Ms Coombs and her legal representatives were unaware of what had passed between Mr Puryer and Daubney J in relation to the notice given to Ms Coombs of Mr Puryer's claim for an indemnity against her. As a result, Mr Puryer's conduct in that regard was not the subject of discussion in the proceedings before Dutney J brought by Ms Coombs to have Order 4 set aside.

The proceedings before Dutney J

According to an affidavit by Ms Coombs which was read before Dutney J, because of difficulties in arranging legal representation, Ms Coombs did not pursue the avenue of relief contemplated by Order 5 of the orders made by Daubney J on 13 December 2007. Rather, once she was able to arrange legal representation, she applied to the Supreme Court pursuant to r 667(2)(a) of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR") to set aside Order 4 made by Daubney J on the basis that it was made in her absence.

On 27 February 2008, Dutney J granted Ms Coombs' application. His Honour expressed the view that the affidavit upon which Mr Puryer relied before Daubney J "seems to be plainly misleading". It should be noted here, however, that his Honour did not make a finding that Mr Puryer had deliberately set out to mislead the court. His Honour's point was rather that what was said and not said by Mr Puryer before Daubney J, was apt to have the effect of suggesting that Ms Coombs had not discharged any of her obligations under the lease after 28 July 2006.

Dutney J went on to say:

"No proper notice was ever given to Ms Coombs that an order of the sort she now seeks to set aside would be asked for, much less made. The order itself appears to have been made as a result of the Judge hearing the matter being misled. That seems to me to be in itself sufficient grounds to set it aside, but in any event I have some difficulty with the notion that a party to a lease where the co-tenant has indicated that she will not be a tenant any longer can exercise an option binding her for future terms of the lease. If I were to decide the matter it seems to me more likely that the proper construction of the handwritten term of the lease is that either party have the option to renew the lease but only the party exercising the option would be bound by any renewed term. That in itself gives rise to a serious question to be tried in relation to the matters covered by Order 4. An argument was raised that the proceedings in the Small Claims Tribunal created issue estoppels in relation to Order 4. I fail to see how that could be so. Until the amended application was filed in the Supreme Court there was no suggestion that Ms Coombs would be bound to pay rent for any renewed term of the lease, and in the absence of an issue I have difficulty seeing how an issue estoppel could arise, particularly since Mr Puryer was not a party to those proceedings in the Small Claims Tribunal. Thus I have some difficulty in seeing how, even if an issue estoppel can arise in relation to proceedings in a Tribunal of such limited jurisdiction it would arise between a party and a non-party. In any event I doubt that the Small Claims Tribunal would have power to determine the issue of construction of the tenancy agreement in the respect relevant here in any event."

Dutney J went on to make an order for costs on the indemnity basis against Mr Puryer:

"In consequence of these reasons I order that Order 4 of the orders of Daubney J made on the 13th of December 2007 be set aside. In view of the fact that the Judge appears to have been misled into making the order and that notice in any appropriate timeframe was not given to Ms Coombs of any intention to seek such an order seems to me that it should be set aside with an order that the applicant pay the costs of today's application and any costs occasioned to the third respondent by reason of the order having been entered on the 13th of December 2007 wherein a party makes an application which is, in essence, ex parte on the basis of an agreement with the other persons affected an agreement made in relation to a different application with different consequences that party has an obligation of utmost good faith to the Court which I don't believe has been complied with in this case for the reasons I have already indicated.

I therefore order that costs be assessed on an indemnity basis."

The appellant's arguments on appeal

In this Court, Mr Puryer advanced a number of arguments challenging the orders made by Dutney J. Mr Puryer argued that, insofar as Dutney J exercised the discretion to set aside Order 4 of the orders made by Daubney J on the basis that Daubney J had been misled as to the facts concerning Ms Coombs' discharge of her obligations under the lease, Dutney J laboured under a misapprehension as to the facts of the hearing before Daubney J.

Mr Puryer argued that Dutney J erred in exercising his discretion on a footing which did not recognise that, in truth, Ms Coombs had not discharged her obligations under the lease because she was bound to contribute to the rent payable in respect of the extended lease consequent upon Mr Puryer's exercise of the option to renew.

Mr Puryer also argued that the orders of the Small Claims Tribunal served to preclude any attempt by Ms Coombs to alter the state of rights and duties reflected by Order 4 of the orders made by Daubney J.

Was Daubney J misled?

In relation to the contention that Dutney J erred in proceeding on the footing that Daubney J had been misled on 13 December 2007, Mr Puryer sought to adduce evidence of correspondence between the parties which followed the hearing before Dutney J. In connection with this point, Mr Puryer argued that he was served with Ms Coombs' application by mail on Friday 22 February 2008 so that he received notice of her application only two business days before the hearing. As a result, he was not as prepared in terms of his response as he would have been had he been given three business days. But Mr Puryer did not seek an adjournment of the hearing of the application in order to respond more fully to it. It is not apparent that Mr Puryer was at all disadvantaged by the circumstances of the service of Ms Coombs' application so far as the evidence which he was able to adduce at the hearing was concerned.

The Court reserved its decision as to whether to receive the further evidence tendered by Mr Puryer. We have decided to reject the tender of this further evidence. It consists largely of correspondence in which Mr Puryer sought to interrogate Ms Coombs' lawyers as to why they had made a submission to Dutney J to the effect that he had misled the court. The material is quite irrelevant to the issue of whether or not Mr Puryer misled Daubney J on 13 December 2007.

Next, Mr Puryer asserted that Dutney J did not read the affidavit sworn by him on 27 February 2008 which was filed and read by leave on that date. Even if this assertion is accurate, and there is nothing in the record to confirm that it is, it is apparent that nothing in this affidavit bears upon the reasoning of Dutney J. Mr Puryer argues that this affidavit shows that Ms Coombs' explanation for her relatively short delay in bringing an application to set aside Order 4 of the orders made by Daubney J should not have been accepted. But nothing in Mr Puryer's affidavit is apt to demonstrate that Ms Coombs' account of the difficulties she faced in mounting an application was untrue.

More importantly, nothing in the affidavit of 27 February 2008 is apt to cast doubt on the conclusion reached by Dutney J that Daubney J was misled by the suggestion in Mr Puryer's affidavit referred to in paragraph [12] above that Ms Coombs had not made any payments in respect of the balance of the initial term of the lease after 28 July 2006. It is, we think, starkly apparent from the transcript of the hearing before Daubney J that the attention of Daubney J was simply not drawn to the fact that Ms Coombs had paid 40 per cent of the rent payable under the balance of the term of the initial lease.

In defence of his conduct before Daubney J, Mr Puryer argues that his application to Daubney J was made on notice to Ms Coombs. He points to the circumstance that he had served Ms Coombs with his amended application on the day before the hearing. Mr Puryer also points to Order 5 made by Daubney J on 13 December 2007 which specifically afforded Ms Coombs the opportunity to apply to the court to protect her interests. As to these points, there can be no doubt that Dutney J was aware that Mr Puryer had notified Ms Coombs of his amended application. His Honour's view was, however, that the notice which Ms Coombs was given was not the notice required by the UCPR, and, in the circumstances, was not apt to alert Ms Coombs to the peril she was in by reason of the late amendment. Mr Puryer accepted during the course of argument in this Court that his amended application was not served on Ms Coombs in due time. More importantly for present purposes, however, the circumstances of the notice given to Ms Coombs do not bear on the question whether Daubney J was misled by what was put before him by Mr Puryer.

As we have said, Dutney J's conclusion as to Mr Puryer's conduct before Daubney J was not that Mr Puryer had deliberately misled the judge; rather, Dutney J concluded that Daubney J had been misled by the position put before him as to Ms Coombs' discharge of her obligations under the lease. In this, Dutney J was clearly correct. It is clear from the transcript of what appeared before Daubney J that his Honour did not appreciate that Ms Coombs had made payments which were apt to discharge her obligations under the lease. Whether or not Mr Puryer deliberately set out to mislead Daubney J, the fact that he achieved that result was a sufficient ground to set aside Order 4.

It is also apparent to us that Daubney J was misled as to the extent of notice given to Ms Coombs as to Mr Puryer's claim for an indemnity from her. For the reasons we have already explained, this issue was not agitated before Dutney J, but these circumstances afford a further ground for upholding the order of Dutney J.

While it is not necessary for us, in order to dispose of this appeal, to come to a view as to whether Mr Puryer deliberately misled Daubney J, we must record our concern that, to say the least, Mr Puryer did not seem to understand that a lawyer's obligations of candour to the court, whose officer he is, are not discharged by leaving it to the court to plough through a bundle of papers in order to discover relevant material adverse to his case. There are, we think, grounds for the investigation by the Legal Services Commissioner of Mr Puryer's conduct before Daubney J.¹

The exercise of the option

Mr Puryer argued that his exercise of the option for renewal of the lease operated not only as against the lessor but also against Ms Coombs so that Order 4 was a true reflection of his substantive entitlements against Ms Coombs. In this regard, he focused upon the terms of the option which confers the right of renewal on "each tenant". It must be said that Mr Puryer's determination to argue this point was not matched by the articulation of any reasoned basis to support it.

The provision of the lease is apt to entitle either one of the co-tenants to exercise the option, even if the other does not choose to do so. That makes perfect sense: in the absence of such a provision, the lessor might decline to renew the lease with only one tenant as the person responsible for paying the rent. But, on no view of the option clause, can it be seen as contemplating that one co-tenant can bind the other against his or her will to obligations under a renewed term.

There was no prospect that a claim for contribution against Ms Coombs might have succeeded in relation to Mr Puryer's rental obligations to the lessor of the Hawkesbury Crescent house after the expiration of the initial term of the lease. The injustice and wrong-headedness of the claim asserted by Mr Puryer in that regard are readily apparent. Mr Puryer would seek to make Ms Coombs contribute to a liability which she did not seek and from which she obtained no benefit at all. Further, insofar as Mr Puryer disputes that Ms Coombs' contribution to the initial term of the lease was limited to 40 per cent of the rent, we note that Mr Puryer sent a letter to Ms Coombs dated 13 July 2006. This letter acknowledged that, to that time, he had agreed that her contribution to the rent would be limited to 40 per cent. In the light of this acknowledgment, it can hardly be seriously argued that Ms Coombs was obliged to contribute an equal share of the rent during the initial term of the lease.

Estoppel

Mr Puryer's third argument, which he described as "most important", is that Dutney J ought to have concluded that the issues raised by Ms Coombs in her application:

"were res judicata or alternatively, an estoppel operated to prevent [Ms Coombs] from seeking to raise these matters as they had been:- (a) Raised or ought to have been raised in the Small Claims Tribunal Small Claim [sic] number 4011 of 2006 and number 450 of 2007 and/or;

(b) Raised or ought to have been raised in the Supreme Court proceedings 7232 of 2006."

As is pointed out by Mr D Williams of Counsel who appeared for Ms Coombs, there could not be any issue estoppel, whether strictly so-called, or of the kind referred to in Port of Melbourne Authority v Anshun Pty Ltd,² by reason of the decision of the Small Claims Tribunal of 28 July 2006 for the simple but compelling reason that that decision was set aside on Mr Puryer's own application by Daubney J in December 2007.

Mr Puryer contends that there were no means available to him other than the judicial review proceedings whereby his rights to a just level of contribution to the rental payable by him for the Hawkesbury Crescent house could be vindicated. In support of this view, Mr Puryer put a number of arguments in relation to the jurisdiction of the Small Claims Tribunal.

Mr Puryer advanced an argument that he was precluded by the provisions of s 18 of the Small Claims Tribunal Act 1973 (Qld) from pursuing his claim for contribution against Ms Coombs in any other court.

Section 18 of the Small Claims Tribunal Act is in the following terms:

"Proceedings of tribunals final

(1) Subject to subsection (2), a settlement or an order made by a small claims tribunal shall be final and binding on all parties to the proceeding in which the settlement or order is made and on all persons who under this Act could have become entitled to be joined as a party to the proceeding in which the settlement or order is made, and no appeal shall lie in respect thereof.

(2) Where the making of a settlement or order of a small claims tribunal made in respect of a claim such as section 4, definition small claim, paragraph (c) is relevant to proceedings relating to a cause of action (other than such a claim) brought in a court or tribunal other than a small claims tribunal, an issue estoppel or the principle of res judicata shall not be raised in those proceedings by reason of the settlement or order, or of any agreement on, or finding of, fact expressed by or implicit in the settlement or order."

In truth, the proceedings in the Small Claims Tribunal did not involve any finding as to the rights and liabilities of Mr Puryer and Ms Coombs as between each other in respect of the rent of the house. Section 18 of the Small Claims Tribunal Act has no bearing at all on these rights and obligations of Mr Puryer and Ms Coombs; but, even if that were not so, s 18(2) would operate to allow Mr Puryer to pursue his claims in another court.

Mr Puryer's argument focused upon s 18(1) to the exclusion of s 18(2). Mr Puryer was unable to advance any coherent basis for the view that s 18(2) did not operate to ensure that he would not be bound by any finding of the Small Claims Tribunal in any proceeding brought by him in a court of competent jurisdiction to recover contribution from Ms Coombs.

Mr Puryer advanced an associated argument in support of the view that the Small Claims Tribunal had jurisdiction to deal with the rights and obligations of himself and Ms Coombs in the proceedings which were brought in the Small Claims Tribunal. Once again, this argument proceeds on the erroneous assumption that the rights and obligations of Mr Puryer and Ms Coombs inter se as co-tenants were in issue in the proceedings in the Small Claims Tribunal. Building on this flawed foundation, Mr Puryer argued that s 254 of the Residential Tenancies Act 1994 (Qld) conferred jurisdiction on the Small Claims Tribunal to determine such a dispute.

It is desirable at this point to set out the terms of s 254 and s 255 of the Residential Tenancies Act:

"254****General disputes between lessors and tenants

(1) If there is a dispute between the lessor and tenant about an agreement, either party may apply to a tribunal for an order, and the tribunal may make any order it considers appropriate, to resolve the dispute.

(2) An application under subsection (1) may be made by a cotenant.

255 Disputes between cotenants about rental bonds

(1) If there is a dispute between cotenants about a rental bond for an agreement, any cotenant may apply to a tribunal for an order, and the tribunal may make any order it considers appropriate, to resolve the dispute.

(2) The tribunal may not make an order under this section without giving the lessor an opportunity to be heard on the application."

Mr Puryer's argument fails to recognise that s 254(2) means only that one co-tenant can bring an application under s 254(1) in respect of a dispute between a lessor and a tenant; it does not contemplate disputes between co-tenants. Section 255 does contemplate applications to the tribunal in respect of disputes between co-tenants, but only disputes of the particular kind there referred to. Section 255 thus emphasises what is already apparent from the text of s 254.

In any event, to say that the Small Claims Tribunal might have entertained a dispute between co-tenants is not even to begin to address the fundamental problem that such a dispute was not tendered to the Small Claims Tribunal for resolution.

There can be no doubt that if Mr Puryer had a just claim for contribution against Ms Coombs it could have been pursued in any court of competent jurisdiction without the need for any involvement of the lessor. Mr Puryer's arguments on these points were as devoid of merit as his argument that Ms Coombs was under a substantive obligation to him.

The appeal should be dismissed.

A further matter

Mr Puryer's conduct as a lawyer in relation to his conduct before Daubney J was such as to raise concern as to whether it was consistent with the conduct expected of an officer of the Court. Accordingly, we propose to direct that the papers in this matter be sent to the Legal Services Commissioner for his consideration.

Costs

Mr Puryer also challenges the costs order made by Dutney J. Section 253 of the Supreme Court Act 1995 (Qld) provides that an appeal only against an exercise of the discretion to order costs lies by the leave of the judge who made the order. Mr Puryer did not seek the leave of Dutney J to appeal against his Honour's order as to costs until the day before the hearing of the appeal. Dutney J granted leave to appeal subject to Mr Puryer obtaining an extension of time within which to bring that appeal to this Court. Mr Puryer sought the necessary extension of time from this Court.

Because we are of the view that there was an ample basis for the imposition of an indemnity costs order on Mr Puryer, and, indeed, that his Honour was clearly correct in taking this course, there would be no utility in granting the extension of time sought by Mr Puryer. His application in that regard is, therefore, refused; and his appeal solely as to the cost orders made by Dutney J must fail.

As to the costs of the appeal to this Court, Mr Puryer's appeal was utterly without merit; its pursuit was quite unreasonable. We have no doubt that Mr Puryer should pay Ms Coombs' costs of and incidental to the appeal to be assessed on the indemnity basis, but we have been asked to consider the possibility of fixing those costs so as to avoid the costs and delays of assessment.

Orders

The appeal is dismissed.

The application for an extension of time to appeal in relation to the costs order below should be refused.

Direct that the parties make written submissions in accordance with Practice Direction No 3 of 2007 as to whether this Court should itself fix the costs of the appeal, and, if so, the amount of such costs.

Direct that the papers in this matter be sent to the Legal Services Commissioner for his consideration.

Footnotes

1. See Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 at 681 – 682, 691. ↩

2. (1981) 147 CLR 589. ↩