Kirkby v Coote
[2006] QCA 87
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- Unreported Judgment
- Appeal Determined (QCA)
- Kirkby v Coote[2006] QCA 87
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Kirkby v Coote[2006] QCA 87
Kirkby v Coote[2006] QCA 87
SUPREME COURT OF QUEENSLAND
PARTIES: | SYDNEY KIRKBY and JUDITH LANG |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | General Civil Appeal - Further Order |
ORIGINATING COURT: | |
DELIVERED ON: | Judgment delivered 10 March 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 February 2006 |
JUDGES: | Williams and Keane JJA and McMurdo J |
ORDER: | Appellant to pay the respondents' costs of and incidental to the appeal to be assessed on the standard basis |
CATCHWORDS: | PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - where Court of Appeal dismissed appeal from decision of learned trial judge - where respondents granted leave to make submission on disposition of costs of the appeal in accordance with Practice Direction 26 of 1999 and Practice Direction 2 of 2004 - where respondents sought indemnity costs on the issue of causation and otherwise costs assessed on the standard basis - whether the circumstances demonstrate a sufficient basis to depart from the usual rules as to assessment of costs Kendell v Kendell & Ors [2005] QCA 390; Appeal No 3004 of 2005, 21 October 2005, cited |
COUNSEL: | P H Morrison QC, with S T Farrell, for the appellants |
SOLICITORS: | Barry & Nilsson for the appellants |
[1] THE COURT: On 10 March 2006, the Court dismissed the appeal. In accordance with paragraph 36A of Practice Direction 26 of 1999 and Practice Direction 2 of 2004, the respondents were given leave to make a submission in relation to the disposition of the costs of the appeal.
[2] The respondents submit that the appellants should be ordered to pay the respondents' costs of and incidental to the appellants' proposed ground of appeal relating to causation, to be assessed on the indemnity basis; and that otherwise, the appellants should be ordered to pay the respondents' costs of the appeal on the standard basis.
[3] The respondents contend that the conduct of the appellants in relation to the causation issue was so plainly unreasonable as to justify the unusual course of imposing an order for indemnity costs on the appellants.[1]
[4] The appellants notified the respondents of the appellants' intention to raise the causation issue as a ground of appeal by letter dated 31 August 2005 after the notice of appeal had been served. Thereafter, both parties addressed the issue in their written submissions. At the commencement of the hearing of the appeal, senior counsel for the appellants informed the Court and the respondents that the appellants did not intend to pursue the causation issue.
[5] The Court does not consider that these circumstances demonstrate a sufficient basis to depart from the usual rule as to the basis on which costs are to be assessed.
[6] The causation issue was not raised for the first time on appeal. It was agitated at trial and addressed by the learned trial judge in his reasons.[2]
[7] That the issue was not pressed at the hearing of the appeal is not demonstrative that the appellants' previous agitation of the issue was groundless; and this Court, in the absence of more detailed argument than has been presented, is certainly not in a position to conclude that the appellants' argument on causation was hopeless.
[8] This Court is not disposed to encourage further argument in this regard because "the game is not worth the candle". The agitation of the causation issue was not apt to have put the respondents to substantial extra costs attributable only to the causation issue; and it is not apparent that any injustice would be caused to the respondents by confining their recovery of the costs of the appeal to costs assessed on the standard basis.
Conclusion and orders