Clayton v Ebborn [2025] QCA 253

SUPREME COURT OF QUEENSLAND CITATION: Clayton v Ebborn [2025] QCA 253 PARTIES: BENJAMIN JOSEPH CLAYTON (first appellant) TK GLOBAL PTY LTD ACN 631 217 224 (second appellant) v DAVID JOHN EBBORN (first respondent) STREAMLINE PRO PTY LTD ACN 162 700 601 (second respondent) FILE NO/S: Appeal No 3723 of 2025 SC No 11976 of 2022 DIVISION: Court of Appeal PROCEEDING: Further Orders – Costs ORIGINATING COURT: Supreme Court at Brisbane – Date of Orders: 7 March 2024 (Bradley J) DELIVERED ON: 10 December 2025 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers JUDGE: Doyle JA ORDERS: 1. The appeal is dismissed. 2. The appellants pay the respondents’ costs of the appeal fixed in the amount of $11,000. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the appeal has been dismissed following failure of the second appellant to file submissions in the appeal – where the respondents seek a fixed costs order of $11,000 – whether the Court should order the appellants pay the respondents an amount for costs fixed by the Court pursuant to r 687(2)(c) of the Uniform Civil Procedure Rules 1999 (Qld) Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52; [2007] HCA 56, applied COUNSEL: No appearance for the appellants L J Rieck (sol) for the respondents SOLICITORS: No appearance for the appellants Aitken Whyte Lawyers for the respondents -- 1 of 2 -- 2 [1] DOYLE JA: On 26 November 2025, I made the following Orders: (a) The appeal hearing of 2 February 2026 is vacated. (b) The respondents are to file an affidavit from the respondents’ solicitor deposing to there being no outline of argument in the appeal filed and served by the appellants. (c) The Court directs that the second appellant is to file and service its outline of submissions in the appeal by no later than 4 pm on 3 December 2025. (d) Failing compliance with that direction, the appeal is dismissed. (e) Costs reserved. [2] No submissions were received from the second appellant on 3 December 2025, or at any time.1 The respondents’ solicitor caused a letter to be sent by post to the registered office of the second appellant enclosing a copy of the Orders.2 A copy of the Orders was also sent by email to the first appellant and the trustee in bankruptcy.3 [3] The appeal is therefore dismissed. [4] There is no reason why the respondents should not have their costs of the appeal. The appellants (who in any event needed to get an extension of time for the appeal) have taken no step to prosecute the appeal. [5] As to the form of order for and the amount of those costs, on 5 December 2025, the respondents filed an outline of argument in support of a fixed costs order in their favour pursuant to r 687(2)(c) of the Uniform Civil Procedure Rules 1999 (Qld). The respondents submitted that such an order should be made in circumstances where: (a) Notwithstanding that the first appellant is now bankrupt, the Court may make an order against him. The order, which is made after the bankruptcy ensued, is not provable debt in the bankruptcy and may be made;4 (b) The actual costs of the appeal are $15,000;5 (c) The standard costs of the appeal would be in the order of $11,250;6 and (d) The amount sought is “realistic for an appeal of this nature”.7 [6] The respondents’ solicitor has provided an overview of the fees and costs incurred and identified what work has been done in respect of the appeal.8 [7] I am satisfied by the material before the Court. To minimise unnecessary delay and expense, the appropriate order is that the appellants pay the respondents’ costs of the appeal fixed by the Court which I assess in the amount of $11,000. 1 Affidavit of Lachlan James Rieck (affirmed 5 December 2025) (Rieck) at [2]-[9]. 2 Rieck at [5]-[6]. 3 Rieck at [7]. 4 Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52, 76 [67] (Gleeson CJ, Gummow, Hayne and Crennan JJ). 5 Rieck at [11]. 6 Rieck at [15]. 7 Respondents’ Outline of Argument – Costs at [15]. 8 Rieck at [11]-[14]. -- 2 of 2 --