Daiko Australia Pty Ltd v Teshgold Pty Ltd [1996] QCA 29

[1996] QCA 029 COURT OF APPEAL DAVIES JA McPHERSON JA MACKENZIE J Appeal No 273 of 1995 DAIKYO AUSTRALIA PTY LTD Respondent (Plaintiff) (ACN 011 036 132) and TESHGOLD PTY LTD Appellant (Defendant) (ACN 057 018 854) BRISBANE ..DATE 19/02/96 JUDGMENT -- 1 of 8 -- 190296 T6/SJ22 M/T COA18/96 2 JUDGMENT DAVIES JA: Teshgold, which was the defendant in an action in the District Court seeks leave to appeal against orders made in that Court on 24 November last. One, that it be allowed a further 14 days to comply with a number of orders made by another District Court Judge by consent on 27 October and two, in the event that those orders were not complied with within 14 days - that is, Mr Carrigan tells us, 8 December - the defence and counterclaim be struck out and the plaintiff be at liberty to sign judgment. It is common ground that that order was interlocutory and that Teshgold therefore requires leave to appeal against it. It is not clear whether final judgment was ever signed. The plaintiff in that action, Daikyo, seeks to strike out the notice of appeal but, as Teshgold concedes, it is unnecessary, except for the purposes of cost, to consider that application. Daikyo also opposes leave to appeal. Paragraphs 1, 2 and 3 of the order of 27 October were that one, Teshgold forthwith lodge for assessment at the Office of State Revenue the original of a contract in writing between the parties for the purpose of having stamp duty assessed on it. Two, Teshgold forthwith upon such assessment issuing pay such stamp duty as was assessed on the contract and three, within 14 days deliver to Daikyo further affidavit documents. Teshgold submits that the requirement that orders 1 and 2 of 27 October 1995 be complied with within 14 days and that unless they were the plaintiff be at liberty to sign judgment impose additional and shorter terms on the -- 2 of 8 -- 190296 T6/SJ22 M/T COA18/96 3 JUDGMENT defendant Teshgold and that this raises an important question of justice. In other words, as I put to Mr Carrigan, Teshgold does not question the correctness of the order but submits that it or its consequences are unjust. I cannot see that they were. The orders made on 27 October were the culmination of a series of failures by Teshgold to comply with its interlocutory obligations. It is not surprising then that the Judge who made the orders the subject of this application imposed the conditions upon them which he did. Moreover, there was no difficulty in complying with those orders. As Mr Carrigan has pointed out in his helpful chronology, the assessment of stamp duty issued on 27 November 1995 it would no doubt have been easy to comply with His Honour's order by paying that assessment on 8 December but for some reason which has never been explained it was never paid until 14 December. In my opinion no question of justice let alone important question of justice arises in this case and I would refuse the application. McPHERSON JA: I agree. Another feature of the case which I consider to be of some relevance is that if the defence and counterclaim is struck out and judgment is entered in favour of the plaintiff in this action it will, prima facie, still be possible for the defendant to pursue its counterclaim by a separate action in that regard. -- 3 of 8 -- 190296 T6/SJ22 M/T COA18/96 4 JUDGMENT In saying that, I am not intending to pass judgment on the question of whether or not the Limitation Act may not have run against it but simply to say that there is no reason why the counterclaim should not be pursued elsewhere rather than in this action. The other point about it which I think is surprising is that the counterclaim purports to be for an amount of over $400,000 which is plainly outside the limits of District Court jurisdiction in a personal action. A counterclaim, as has often been said, is simply an action itself which is brought by the defendant against the plaintiff and it would appear therefore that the counterclaim is outside the limit of monetary jurisdiction of the District Court. It follows that in any event there is no good reason why it should be pursued in this action and it would have been open to the plaintiff to obtain judgment in this action irrespective of the fact that there was another action pending in a Court with jurisdiction over an amount so large as is claimed in the counterclaim. When that factor is borne in mind it provides an additional reason along with those mentioned by Mr Justice Davies for concluding that there is no question of justice involved in this case and no injustice in allowing the order against which it is sought to appeal to stand. I would therefore agree with him in dismissing this application. MACKENZIE J: I agree that there is no important question of -- 4 of 8 -- 190296 T6/SJ22 M/T COA18/96 5 JUDGMENT law or justice involved and agree with the orders proposed. McPHERSON JA: The application for leave to appeal is therefore refused with costs. MR MATTHEWS: Your Honour, I ask for an order that in accordance with the applicant's outline on its - Daikyo's outline on its notice of motion in paragraph 2 of that motion that the costs be taxed on an indemnity basis in light of the principles enunciated in the cases referred to in the outline. This is one of those exceptional cases where the contumelious and continued disregard of the rules and the orders of the Court would warrant it and when before Judge Hall the question of no leave having been obtained prior to the filing of the notice two days before the summons was returnable before him was already known to the defendant, to Teshgold, before it filed all this material for leave last week after receipt of the - of Daikyo's outline and list of authorities. McPHERSON JA: Well, Mr Matthews, I think at present the members of the Court are indisposed to grant your application for an order in that form. I suppose if you wish to argue it we will have to listen to you. MR MATTHEWS: Your Honour, I won't press the matter but I would ask for an order to be made on the motion that Daikyo filed to strike the appeal out. MR CARRIGAN: Could I be heard on that application, Your Honour? The notice - that notice was brought without any notice to Teshgold against a background where on 22 December my solicitors wrote to Daikyo and said that we weren't proceeding with the appeal given that His Honour, Judge Hall reserved a decision in which - it hinged upon this appeal and that had been reserved since 15 December. On 22 December Daikyo wrote back and said that the matter of the appeal and its prosecution is entirely a matter for you - meaning Teshgold - said nothing further and then either on 11 or 19 January filed that notice that Mr Matthews is now seeking costs on without any notice. DAVIES JA: Hadn't they already said you need leave? MR CARRIGAN: They had already said but we----- DAVIES JA: And you hadn't sought leave. MR CARRIGAN: No. But we had written to them on 22 December saying we didn't intend to pursue the prosecution----- DAVIES JA: No, no. Want to delay it because we've got - not we're not going to go ahead at all, we want to delay it because we've got another - we'll have another go before Judge Hall. -- 5 of 8 -- 190296 T6/SJ22 M/T COA18/96 6 JUDGMENT MR CARRIGAN: Before Judge Hall and the - and Daikyo wrote back and said that's just entirely a matter for you. Not saying that look, if you don't bring an application we'll bring an application and Mr Smith in his affidavit said if any notice had have been given we would have immediately brought this unsuccessful application today. McPHERSON JA: A solicitor writes to you and says well, it's your case you manage it as you wish and you say that somehow is a black mark against him. MR CARRIGAN: Only to this extent, that----- DAVIES JA: And they say to you, you need leave, you haven't applied for leave, what are you going to do about it and you say well, we're going to go back to a District Court Judge, we don't care about applying for leave and you go back and have another crack there. MR CARRIGAN: It's really a question that the submission on the costs in this notice is that - the notice of motion was that it was really brought without any peremptory notice and we say that if it had have these costs could have been avoided, they're just being incurred unnecessarily. McPHERSON JA: The costs here? MR CARRIGAN: The costs of Mr Matthews' client or Daikyo's notice of motion to strike out this appeal. McPHERSON JA: You say that's all unnecessary. MR CARRIGAN: Yes. Because we would have brought - if they had given us notice of it we would have immediately responded by bringing out notice of motion for leave to appeal. McPHERSON JA: Well, it seems to me that you want to be looked after by everybody including the solicitor on the other side. Why didn't you apply for leave sooner; you should have done. MR CARRIGAN: Your Honour, as we pointed out to Daikyo's solicitors, on 22 December because the argument for extension of time of His Honour, Judge Hanger's order was being considered in a reserved decision of His Honour, Judge Hall on 15 December which may effectively if granted dispose of this matter. We didn't think that as was pointed out in the letter necessary to engage additional costs at this stage by applying for the leave. McPHERSON JA: Well, as I see it what you did was to appeal, purport to appeal, and then to go to a Judge of coordinate jurisdiction with that of the Judge you're appealing against and try to get him to act in a way which would make the appeal redundant, in effect. Isn't that so? You must know you can't----- -- 6 of 8 -- 190296 T6/SJ22 M/T COA18/96 7 JUDGMENT MR CARRIGAN: Yes. Yes. McPHERSON JA: Once you appeal the jurisdiction shifts to this Court and Courts below must not deal with the matter in any way that might affect the jurisdiction of this Court on appeal and frankly I think it comes very close to being in itself a contumelious disregard of the jurisdiction of this Court. The rule has been clear for a very long time and just speaking out from memory if you look at a case which I think is called Concrete Developments v. Queensland Housing Commission in I think 1961 Queensland Reports you'll see a discussion of it by Mr Justice Philp but there is no doubt about the rule and you shouldn't have tried to invoke the jurisdiction of the District Court to interfere with an order that you're actually appealing against. So, I think, speaking for myself only, that you should bear whatever costs are associated with that. DAVIES JA: So do I. MACKENZIE J: Yes, I agree. McPHERSON JA: So, the order will be, if I have not already said it, that the costs of the application to this Court for leave to appeal will be paid by the applicant Teshgold and the order is not made for payment on an indemnity basis of those costs. McPHERSON JA: And then there is the other application. Now, is that actually before us, Mr Matthews? MR MATTHEWS: That's what brought the matter on today, the notice of motion filed 19 January by Daikyo. McPHERSON JA: Well, in respect of the notice of motion that Mr Matthews has a moment ago identified the order will be that Teshgold pay the costs of Daikyo of and in respect of that notice of motion as to which I suppose we may now dismiss it. MR MATTHEWS: Yes, Your Honour. Unless the document which was -- 7 of 8 -- 190296 T6/SJ22 M/T COA18/96 8 JUDGMENT filed without leave, that motion seeks to strike that out. McPHERSON JA: Yes. MR MATTHEWS: It being only a purported appeal there having been no leave obtained. McPHERSON JA: Well, I suppose it does not really matter whether we strike the thing out or not. MR MATTHEWS: The effect will be the same. McPHERSON JA: Yes. We are making an order on it with respect to costs and that is sufficient I suppose for the purpose. MR MATTHEWS: Thank you, Your Honour. ----- -- 8 of 8 --