Theden v Nominal Defendant
[2008] QCA 92
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- Unreported Judgment
- Appeal Determined (QCA)
- Theden v Nominal Defendant[2008] QCA 92
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Theden v Nominal Defendant[2008] QCA 92
Theden v Nominal Defendant[2008] QCA 92
SUPREME COURT OF QUEENSLAND
PARTIES: | THEKLA CHARLOTTE THEDEN |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | General Civil Appeal - Further Order as to Costs |
ORIGINATING COURT: | |
DELIVERED ON: | 18 April 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
JUDGES: | Keane, Holmes and Fraser JJA Judgment of the Court |
ORDER: | Appellants to pay the respondent's costs of and incidental to the appeal to be assessed on the indemnity basis |
CATCHWORDS: | PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where the appeal was dismissed by the Court – where the amount in issue under the proceedings was $1,423.08 – where an order for costs to be recovered on the standard basis would result in the amount actually in dispute being exhausted by the difference between the costs payable by the respondent to his lawyers and the costs recoverable from the appellants – where the points on which the appeal turned were not wholly unarguable – whether the Court should order that costs be payable by the respondent to the appellant on the indemnity basis Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 118 ALR 248; [1993] FCA 536, cited Di Carlo v Dubois & Ors [2002] QCA 225, cited Smits v Tabone; Blue Coast Yeppoon Pty Ltd v Tabone [2007] QCA 337, cited |
COUNSEL: | R G Bain QC, with G J Robinson, for the appellants T W Quinn for the respondent |
SOLICITORS: | Broadley Rees for the appellants Greg Ryan Solicitor for the respondent |
[1] THE COURT: On 28 March 2008 the Court dismissed the appeal in this matter. The respondent was given leave to make a written submission to the Court as to the basis on which the appellants should be ordered to pay the respondent's costs of the appeal. Both sides have made submissions in that regard.
[2] The respondent seeks an order that the appellants pay his costs on the indemnity basis. The respondent points to the trifling amount which was in dispute: it appears that the amount in issue was only $1,311.60 plus an assessment fee of 8.5 per cent, a total of $1,423.08. It is said on the respondent's behalf that, if the respondent recovers his costs on the standard basis, the amount actually in dispute will be exhausted by the difference between the costs payable by the respondent to his lawyers and the costs recoverable from the appellants. The respondent argues that this circumstance, coupled with the appellants' pursuit of "unsupportable allegations of misconduct" against Mr Goudkamp, makes this an appropriate case for the award of costs on the indemnity basis.[1]
[3] The appellants resist the respondent's application on the footing that there was no "evidence of unreasonable conduct"[2] on their part, in that some, at least, of the grounds agitated by the appellants were fairly arguable so that the appeal was not "wholly without … merit".[3]
[4] It may be accepted that the points on which the appeal turned, and which were resolved against the appellants, were not wholly unarguable. Nevertheless, the pursuit of these points in a case where the amount in issue was paltry and where it was an integral part of the appellants' case that Mr Goudkamp was guilty of criminal misconduct, a view contrary to longstanding authority, is, we think, deserving of the description "unreasonable" in the sense used in the authorities relating to the award of indemnity costs.
[5] Accordingly, we order that the appellants should pay the respondent's costs of and incidental to the appeal to be assessed on the indemnity basis.