Zonebar Pty Ltd v Global Management Corporation Pty Ltd (No 2)
[2009] QCA 141
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- Unreported Judgment
- Zonebar Pty Ltd v Global Management Corporation Pty Ltd (No 2)[2009] QCA 141
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Zonebar Pty Ltd v Global Management Corporation Pty Ltd (No 2)[2009] QCA 141
Zonebar Pty Ltd v Global Management Corporation Pty Ltd (No 2)[2009] QCA 141
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | SC No 2904 of 2003 |
Court of Appeal | |
PROCEEDING: | Miscellaneous Application - Civil |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | Judgment delivered 8 May 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
JUDGES: | Keane JA, White and Wilson JJ Judgment of the Court |
FURTHER ORDER: | The applicant to pay the respondents' costs of and incidental to the application and notice of appeal to be assessed on the indemnity basis |
CATCHWORDS: | PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where proposed appeal entirely without merit – where application for extension of time to appeal distinctly unreasonable – whether costs should be ordered on indemnity basis Uniform Civil Procedure Rules 1999 (Qld), r 687 Zonebar Pty Ltd v Global Management Corporation Pty Ltd & Anor [2009] QCA 121, cited |
COUNSEL: | C D Coulsen for the applicant R A Perry SC, with A L Wheatley, for the respondents |
SOLICITORS: | Morgan Conley for the applicant Minter Ellison for the respondents |
[1] THE COURT: On 8 May 2009 this Court refused Zonebar's application for an extension of time within which it might appeal against the decision of the learned primary judge.[1] The successful respondents seek an order that Zonebar pay their costs of and incidental to the application and the notice of appeal on the indemnity basis. The respondents also seek that this Court fix the amount of those costs pursuant to r 687(2)(c) of the Uniform Civil Procedure Rules 1999 Qld ("the UCPR"). The respondents seek further direction in relation to the fixing of costs.
[2] The members of the Court were agreed that the proposed appeal was "entirely without merit".[2]
[3] The respondents seek indemnity costs on the basis that the appeal which Zonebar sought to pursue was without any real prospect of success. On Zonebar's behalf it is said that "simply because time is not extended on the basis of the assessment of merit in such a determination does not lead to the conclusion that costs must be assessed on an indemnity basis".
[4] While it may be accepted that not every case in which an indulgence necessary to enable an appeal to proceed is refused will be the occasion for an award of costs on the indemnity basis, in this case there was no arguable merit in the proposed appeal. It was bound to fail even if the extension had been granted. The pursuit of the application was distinctly unreasonable. That unreasonableness was aggravated in this case by the circumstance that more than five years after Zonebar commenced its action it was seeking to propound what would have been its sixth amended statement of claim.
[5] It is, therefore, appropriate to order that Zonebar pay the costs of the respondents of and incidental to the appeal to be assessed on the indemnity basis.
[6] The Court is not disposed to seek to fix the amount of the costs pursuant to r 687(2)(c) of the UCPR. That course is not convenient having regard to the sitting arrangements affecting the members of the Court.
[7] Accordingly, the Court orders that Zonebar pay the respondents' costs of and incidental to Zonebar's application and notice of appeal to be assessed on the indemnity basis.