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  • Unreported Judgment

Vale 1 Pty Ltd v Delorain Pty Ltd

 

[2010] QCA 351

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

DELIVERED ON:

Judgment delivered on 28 September 2010

Further Orders delivered on 10 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

McMurdo P and White JA and Applegarth J

Judgment of the Court

ORDERS:

1.The respondent pay the appellant’s costs of and incidental to the originating application filed 14 April 2009 to be assessed on a standard basis.

2.The respondent pay the appellant’s costs of and incidental to the appeal.

3.The respondent be granted a certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) in respect of the appeal costs.

CATCHWORDS:

PROCEDURE – COSTS – APPEALS AS TO COSTS – DISCRETION NOT EXERCISED – where the respondent submits there should be no order as to costs at first instance on the basis that the decision of the primary judge was essentially overturned on a point that was not raised below – whether costs should follow the event

PROCEDURE – COSTS – CERTIFICATE FOR COSTS: COSTS ON OTHER THAN INFERIOR COURT SCALE – CASES TO WHICH STATUTE OR RULE APPLIES – where respondent seeks an indemnity certificate for the appeal – where appellant succeeded on a question of law that involved an important point of statutory construction – whether an indemnity certificate should be granted

Appeal Costs Fund Act 1973 (Qld), s 15

Cheree–Ann Property Developers Pty Ltd v East West International Development Pty Ltd [2007] 1 Qd R 132; [2006] QSC 182, cited

Haug v Jupiters Limited t/a Conrad Treasury Brisbane [2007] QCA 328, cited

Lauchlan v Hartley [1980] Qd R 149, cited

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, followed

Sultana Investments P/L v Cellcom P/L (No 2) [2009] 2 Qd R 287; [2008] QCA 398, cited

Vale 1 P/L as Trustee for the Vale 1 Trust v Delorain P/L as Trustee for the Delorain Trust [2010] QCA 259, cited

COUNSEL:

P J Roney for the appellant

G Handran for the respondent

SOLICITORS:

Macrossan and Amiet for the appellant

Hickey Lawyers for the respondent

[1]  THE COURT:  The appeal in this matter was allowed, the orders made by the primary judge were set aside and in lieu thereof the appellant obtained a declaration that the relevant agreement was validly terminated by it.[1]  The Court had proposed to make orders that:

 

(a)The respondent pay the appellant’s costs and incidental to the originating application filed 14 April 2009.

(b)The respondent pay the appellant’s costs of and incidental to the appeal.

However, the respondent was given leave to make submissions on costs.  It submits that there should be no order as to the costs at first instance.  It does not oppose an order that it pay the appellant’s costs of and incidental to the appeal, but seeks an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld).

[2] The appellant submits that the respondent should pay its costs of the proceeding at first instance to be assessed on the standard basis, since there is nothing that would warrant departure from the rule that costs ought follow the event.[2]

The costs of the proceedings at first instance

[3] The appeal raised two essential issues.  The first was whether the decision in Cheree-Ann Property Developers P/L v East West International Development P/L[3] should be followed.  The second was whether the primary judge erred in concluding that this case was “on all fours” with Cheree-Ann.  The appellant succeeded on both issues.  The respondent submits that the decision of the primary judge was “essentially overturned by this Court on a basis which was not raised by (the appellant) below.”  It is true that the appellant argued before the primary judge that Cheree-Ann was distinguishable, and the contention that it should not be followed was only developed during the course of the appeal.  However, it is not accurate to submit that the appellant only succeeded because this Court decided that Cheree-Ann should not be followed.  The appellant also succeeded in demonstrating that this case was not “on all fours” with Cheree-Ann.  The facts of this case were materially different to the facts of Cheree-Ann.  The agreement between the appellant and the respondent could not be characterised as something other than acontract for the sale of residential property, and could not be fairly characterised as a contract that provided stock for a party that undertook a business as a property marketer.

[4] If this Court had simply confined Cheree-Ann to its facts, rather than concluded that it should not be followed, the appellant still would have been successful in its appeal on the basis the primary judge erred in concluding that this case was “on all fours” with Cheree-Ann.  The appeal still would have been allowed, the orders at first instance set aside and the declaration which the appellant obtained on appeal would have been made. 

[5] The fact that the appellant succeeded in the appeal on the ground that Cheree-Ann should not be followed, being an argument that was not advanced by it at first instance, does not provide a sufficient reason to deprive it of an order for costs at first instance.  The appellant should have succeeded at first instance, but did not do so because the respondent persuaded the primary judge that this case was on all fours with Cheree-Ann

[6] The respondent has not shown why there should be no order as to the costs of the proceedings at first instance.  Those costs should follow the event.  The appropriate order is that the respondent pay the appellant’s costs of and incidental to the originating application filed 14 April 2009 to be assessed on a standard basis.

Indemnity certificate

[7] Section 15 of the Appeal Costs Fund Act 1973 relevantly provides:

 

“(1)Where an appeal against the decision of a court –

(a)to the Supreme Court ...

on a question of law succeeds, the Supreme Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal.”

The power to grant an indemnity certificate is discretionary.  The Act does not specify criteria for the exercise of the discretion.  However, this Court has given guidance about the circumstances in which the discretion should be exercised.[4]  An example of the granting of an indemnity certificate in a case in which a decision was reversed on a point of law is Haug v Jupiters Ltd t/a Conrad Treasury Brisbane[5] which involved competing constructions of certain sections of the Personal Injuries Proceedings Act 2002.  Another example is Sultana Investments P/L v Cellcom P/L (No 2)[6] in which the appellant was successful on an important point of law and in which “both sides of the debate were fairly arguable.”[7]

[8] In this case the appellant succeeded on an important question of statutory interpretation.  The point of statutory construction and the issue of whether Cheree-Ann should be followed involved issues of importance to parties other than the parties to the appeal.  The respondent’s contention that Cheree-Ann should be followed was fairly arguable.

[9] If the Court had decided to follow Cheree-Ann, then the appellant nevertheless would have failed in the appeal since this Court found that this case is materially different to the facts of Cheree-Ann.  This is a discretionary consideration which does not favour the granting of an indemnity certificate.  However, the appellant succeeded on a question of law that involved an important point of statutory construction.  In the circumstances, we consider that this is an appropriate case in which to grant an indemnity certificate.

[10]  The orders as to costs will be:

 

1.The respondent pay the appellant’s costs of and incidental to the originating application filed 14 April 2009 to be assessed on a standard basis. 

2.The respondent pay the appellant’s costs of and incidental to the appeal.

3.The respondent be granted a certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) in respect of the appeal costs.

Footnotes

[1] Vale 1 P/L as Trustee for the Vale 1 Trust v Delorain P/L as Trustee for the Delorain Trust [2010] QCA 259.

[2] Uniform Civil Procedure Rules 1999 r 681; Oshlack v Richmond River Council (1998) 193 CLR 72 at [66] – [67].

[3] [2007] 1 Qd R 132; [2006] QSC 182 (“Cheree-Ann”).

[4] Lauchlan v Hartley [1980] Qd R 149; Sultana Investments P/L v Cellcom P/L (No 2) [2008] QCA 398.

[5] [2007] QCA 328.

[6] Supra.

[7] Lauchlan v Hartley (supra) at 151.

Close

Editorial Notes

  • Published Case Name:

    Vale 1 P/L as Trustee for the Vale 1 Trust v Delorain P/L as Trustee for the Delorain Trust

  • Shortened Case Name:

    Vale 1 Pty Ltd v Delorain Pty Ltd

  • MNC:

    [2010] QCA 351

  • Court:

    QCA

  • Judge(s):

    McMurdo P, White JA, Applegarth J

  • Date:

    10 Dec 2010

Litigation History

Event Citation or File Date Notes
QCA Interlocutory Judgment [2010] QCA 351 10 Dec 2010 -

Appeal Status

No Status