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  4. Southern Cross Mine Management Pty Ltd v Ensham Resources - [2007] QCA 31

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Southern Cross Mine Management Pty Ltd v Ensham Resources[2007] QCA 31

Southern Cross Mine Management Pty Ltd v Ensham Resources[2007] QCA 31

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Southern Cross Mine Management PL v Ensham Resources & Ors  [2007] QCA 31

PARTIES:

SOUTHERN CROSS MINE MANAGEMENT PTY LTD
ACN 082 767 548
(plaintiff)
v
ENSHAM RESOURCES PTY LTD
ACN 011 048 678
(applicant/respondent/first defendant)
BLIGH COAL LIMITED
ACN 010 186 393
(second defendant)
IDEMITSU QUEENSLAND PTY LTD
ACN 101 236 272
(third defendant)
EPDC(AUSTRALIA) PTY LTD
ACN 002 307 682
(fourth defendant)
L.G. INTERNATIONAL (AUSTRALIA) PTY LTD
ACN 002 806 831
(fifth defendant)
KENNETH JOHN FOOTS
(respondent/appellant/first defendant added by counterclaim)
FOOTS PTY LTD
ACN 010 195 061
(second defendant added by counterclaim)
LITTLE DIGGER MINING LIMITED
ACN 096 110 717
(fourth defendant added by counterclaim)
NORMA AGNES FOOTS
(fifth defendant added by counterclaim)
KENNETH JOSEPH HILL
(third party to counterclaim)
KENNETH JOHN FOOTS
(fourth party to counterclaim)

FILE NO/S:

Appeal No 1768 of 2006

SC No 9548 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 February 2007

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Jerrard and Holmes JJA and Mullins J

Separate reasons for judgment of each member of the Court, Jerrard and Holmes JJA concurring as to the orders made, Mullins J dissenting

FURTHER ORDER:

The appellant is to pay the costs of the respondent of the appeal, to be assessed on the standard basis 

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – where appellant had an arguable case – where the matter litigated was of broader public interest –whether appropriate to make an order for costs

Uniform Civil Procedure Rules 1999 (Qld), r 689(1), r 766(1)(d)

Oshlack v Richmond River Council (1999) 193 CLR 72, considered

SOLICITORS:

Conroy & Associates for the appellant

Allens Arthur Robinson for the respondent

[1]  JERRARD JA:  On 8 December 2006 this Court dismissed the appellant’s appeal and granted the parties leave to make submissions on costs.  Those submissions have been received; the appellant argues no order for costs should be made because the matter litigated was most certainly not free from doubt and there was a broader interest, beyond the interests simply of the parties to the litigation, that the doubt be authoritatively resolved.  Those submissions can be accepted, but the appellant failed below and on appeal.  The respondent, as the successful party in the litigation, is entitled to an award of costs in its favour unless this Court considers that some other is more appropriate (Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) r 689(1), r 766(1)(d), and see Oshlack v Richmond River Council (1999) 193 CLR 72 per McHugh J at 97).  No good reason has been shown for considering that a different order would be more appropriate; it is not appropriate to make no order for costs simply because the unsuccessful party had a plainly arguable case, or because the point determined has some wider importance.

[2] I agree with the respondent’s submission that leave is not required under UCPR r 72; if it were, it should be granted.

[3] The order of the Court should be that the appellant Kenneth John Foots pay the respondent’s costs of and incidental to the appeal, assessed on the standard basis.

[4]  HOLMES JA: I agree with Jerrard JA that the appellant should pay the respondent’s costs of the appeal.

[5]  MULLINS J:  I indicated in Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd & Ors [2006] QCA 531 what the costs order in respect of the appeal should be, consistent with my dissenting judgment.  It is therefore unnecessary for me to deal with the parties’ submissions on costs of the appeal.

Close

Editorial Notes

  • Published Case Name:

    Southern Cross Mine Management PL v Ensham Resources & Ors

  • Shortened Case Name:

    Southern Cross Mine Management Pty Ltd v Ensham Resources

  • MNC:

    [2007] QCA 31

  • Court:

    QCA

  • Judge(s):

    Jerrard JA, Holmes JA, Mullins J

  • Date:

    09 Feb 2007

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2003] QSC 25306 Aug 2003Joinder application; application to join party as a defendant to a counterclaim successful: P McMurdo J.
Primary Judgment[2003] QSC 402 [2004] 2 Qd R 20726 Nov 2003Strike out application successful; the fiduciary duty alleged in favour of the joint venturers is one to protect the interests of Ensham and that the breach of duty resulted in a loss to Ensham and there is no scope for the operation of an identical fiduciary duty to Ensham’s shareholders: Chesterman J.
Primary Judgment[2003] QSC 48615 Dec 2003Costs following judgment in [2003] QSC 402; defendants pay defendants by counterclaim's costs of strike out applications on standard basis: Chesterman J.
Primary Judgment[2004] QSC 45717 Dec 2004Strike out applications; in seeking a proprietary remedy such as a constructive trust, it is necessary to plead a sufficient connection (or “causation”) between breach of duty and the profit derived, the loss sustained, or the asset held: Chesterman J.
Primary Judgment[2005] QSC 23326 Aug 2005Trial of contractual dispute arising with respect of joint venture operation of coal mine; allegations of breach of fiduciary duty, fraudulent misrepresentation, existence of constructive trust; judgment for defendants on plaintiff's claim and judgment for first defendant on counterclaim: Chesterman J.
Primary Judgment[2006] QSC 7 (2006) 196 FLR 419; (2006) 3 ABC(NS) 76103 Feb 2006Costs following judgment in [2005] QSC 233; plaintiff bankrupt on presentation of own petition following judgment; an application for costs was either a legal proceeding or a fresh step in a legal proceeding and that leave of the Federal Court would be required if it were “in respect of a provable debt” under s 58(3) Bankruptcy Act; an order for costs made after bankruptcy would not be provable in it and therefore s 58(3) did not apply and gave leave pursuant to UCPR r 72: Chesterman J.
QCA Interlocutory Judgment[2006] QCA 21116 Jun 2006Application for security for costs; reasonably arguable case on the appeal and offered $7,500 as security; security amount offered so ordered, with offeree to pay costs of application: Jerrard JA, Helman and Muir JJ.
Appeal Determined (QCA)[2006] QCA 531 (2006) 4 ABC(NS) 44308 Dec 2006Appeal against [2006] QSC 7 dismissed; in the absence of any order before bankruptcy, the costs in this case were not a provable debt: Jerrard and Holmes JJA and Mullins J (Mullins J dissenting, finding that the order for costs would be a provable debt as incidental to the judgment sum ordered before bankruptcy and therefore leave under s 58(3) Bankruptcy Act was required).
Appeal Determined (QCA)[2007] QCA 3109 Feb 2007Costs following judgment in [2006] QCA 531; appellant pay costs on standard basis: Jerrard and Holmes JJA and Mullins J (Mullins J not giving judgment on costs as a result of dissenting in appeal).
Special Leave Granted (HCA)[2007] HCATrans 15524 Apr 2007Special leave against [2006] QCA 531 granted: Kirby and Hayne JJ.
HCA Judgment[2007] HCA 56; (2007) 234 CLR 52; (2007) 82 ALJR 173; (2007) 5 ABC(NS) 41907 Dec 2007Upholding decision in [2006] QCA 531; there is no scope in the text or structure of the Bankruptcy Act for the notion of an obligation or liability "incidental" to a provable debt: Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ (Kirby J dissenting).

Appeal Status

Appeal Determined (QCA) - Appeal Determined (HCA)

Cases Cited

Case NameFull CitationFrequency
Oshlack v Richmond River Council (1999) 193 CLR 72
2 citations
Jump To
Cite 1 - (1999) 193 CLR 72
Cite 2 - (1999) 193 CLR 72
Southern Cross Mine Management v Ensham Resources [2006] QCA 531
1 citation
Jump To
Cite 1 - [2006] QCA 531

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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