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Famestock Pty Ltd v Body Corporate for No 9 Port Douglas Road Community Title Scheme 24368[2015] QCA 142

Famestock Pty Ltd v Body Corporate for No 9 Port Douglas Road Community Title Scheme 24368[2015] QCA 142

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

Famestock Pty Ltd v The Body Corporate for No 9 Port Douglas Road Community Title Scheme 24368 [2015] QCA 142

PARTIES:

FAMESTOCK PTY LTD
ACN 010 499 989
(appellant/cross-respondent)
v
THE BODY CORPORATE FOR NO 9 PORT DOUGLAS ROAD COMMUNITY TITLE SCHEME 24368
(respondent/cross-appellant)

FILE NO:

Appeal No 11300 of 2012

SC No 48 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

Supreme Court at Cairns – [2012] QSC 129

DELIVERED ON:

7 August 2015

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Fraser JA and Douglas J

Judgment of the Court

ORDERS:

  1. The costs the Appellant was ordered to pay to the Respondent by order made on 29 November 2013 in Supreme Court proceeding no. 48 of 2008 (the Supreme Court Proceeding) be fixed in the amount of $178,351.16.
  2. The amounts paid by the Appellant and received by the Respondent as security for costs in the Supreme Court Proceeding, being $75,000.00, be offset against the costs fixed in order no. 1 above, leaving a balance of $103,351.16 due to the Respondent.
  3. The costs the Appellant was ordered to pay to the Respondent by order made on 29 November 2013 in this Appeal proceeding (the Appeal Proceeding) be fixed in the amount of $70,173.08.
  4. The amount paid by the Appellant and received by the Respondent as security for costs in the Appeal Proceeding, being $21,278.34, be offset against the costs fixed with respect to the Appeal Proceeding in order no. 3 above, leaving a balance due to the Respondent in the sum of $48,894.74.
  5. The indemnity costs the Appellant was ordered to pay to the Respondent by order made 8 June 2012 by Henry J in the Supreme Court Proceeding be fixed in the amount of $1,243.31.
  6. The costs the Appellant was ordered to pay to the Respondent by order made 23 September 2011 by Henry J in the Supreme Court Proceeding be fixed in the amount of $14,233.00.

CATCHWORDS:

PROCEDURE – COSTS – ORDER FOR COSTS – where the respondent applied for orders fixing the amounts for costs payable to it by the appellant following the conclusion of the substantive litigation – where an affidavit by a solicitor sufficiently established that the amounts sought to be fixed are reasonable and proper amounts to be fixed as the costs payable under the costs orders

Uniform Civil Procedure Rules 1999 (Qld), r 687

COUNSEL:

No appearance by the appellant/cross-respondent, the appellant’s/cross-respondent’s submissions were heard on the papers

No appearance by the respondent/cross-appellant

SOLICITORS:

Thynne & Macartney for the appellant/cross-respondent

No appearance for the respondent/cross-appellant

  1. THE COURT:  The respondent has applied for orders fixing the amounts for costs payable to it by the appellant under four costs orders: see Uniform Civil Procedure Rules 1999, r 687(2)(c).  The substantive litigation was concluded by a judgment of the Court of Appeal in late 2013.[1]  An affidavit by a solicitor sufficiently establishes that the amounts sought to be fixed are reasonable and proper amounts to be fixed as the costs payable under the costs orders.  The appellant has not sought to be heard after being notified of the application and that the Court proposes to decide it on the papers and make orders as sought by the respondent.  In these circumstances it is appropriate to make orders substantially in the form sought.
  2. The Court orders as follows:
    1. The costs the Appellant was ordered to pay to the Respondent by order made on 29 November 2013 in Supreme Court proceeding no. 48 of 2008 (the Supreme Court Proceeding) be fixed in the amount of $178,351.16.
    2. The amounts paid by the Appellant and received by the Respondent as security for costs in the Supreme Court Proceeding, being $75,000.00, be offset against the costs fixed in order no. 1 above, leaving a balance of $103,351.16 due to the Respondent.
    3. The costs the Appellant was ordered to pay to the Respondent by order made on 29 November 2013 in this Appeal proceeding (the Appeal Proceeding) be fixed in the amount of $70,173.08.
    4. The amount paid by the Appellant and received by the Respondent as security for costs in the Appeal Proceeding, being $21,278.34, be offset against the costs fixed with respect to the Appeal Proceeding in order no. 3 above, leaving a balance due to the Respondent in the sum of $48,894.74.
    5. The indemnity costs the Appellant was ordered to pay to the Respondent by order made 8 June 2012 by Henry J in the Supreme Court Proceeding be fixed in the amount of $1,243.31.
    6. The costs the Appellant was ordered to pay to the Respondent by order made 23 September 2011 by Henry J in the Supreme Court Proceeding be fixed in the amount of $14,233.00.

Footnotes

[1] Famestock Pty Ltd v The Body Corporate for No 9 Port Douglas Road Community Title Scheme 24368 [2013] QCA 354 (de Jersey CJ, Fraser JA and Douglas J).  Pursuant to s 31(1) of the Supreme Court of Queensland Act 1991, the effect of de Jersey CJ’s resignation as a judge on 8 July 2014 is that the remaining two judges may finish the hearing and determination of the proceeding.

Close

Editorial Notes

  • Published Case Name:

    Famestock Pty Ltd v The Body Corporate for No 9 Port Douglas Road Community Title Scheme 24368

  • Shortened Case Name:

    Famestock Pty Ltd v Body Corporate for No 9 Port Douglas Road Community Title Scheme 24368

  • MNC:

    [2015] QCA 142

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Douglas J

  • Date:

    07 Aug 2015

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2011] QSC 36523 Sep 2011The plaintiff was ordered to provide security for the defendant’s costs of the proceedings in the amount of $45,000: Henry J.
Primary Judgment[2012] QSC 12910 May 2012Determination of a separate question. Answered - The committee of the defendant was not entitled to determine the plaintiff’s caretaking and letting agreement, that being a matter requiring the authority of a general meeting of the defendant: Henry J.
Primary Judgment[2012] QSC 33926 Oct 2012Claim for damages for breach of contract. Judgment for the plaintiff in the sum of $37,632.53 plus any interest ordered pursuant to s 58 Civil Proceedings Act 2011: Henry J.
QCA Interlocutory Judgment[2013] QCA 1513 Feb 2013Appellant ordered to provide security for the respondent's costs of the appeal in the amount of $21,000: Fraser JA.
QCA Interlocutory Judgment[2013] QCA 9223 Apr 2013Order made on the 13 February 2013 varied by extending the time for provision of the security for costs to 4 pm on 22 April 2013. Gotterson JA.
Appeal Determined (QCA)[2013] QCA 35429 Nov 2013Appeal in respect of [2012] QSC 339. Appeal dismissed with costs. Cross-appeal allowed with costs. Set aside orders made on 26 October 2012. In lieu, ordered that judgment be entered for the defendant with costs: de Jersey CJ, Fraser JA and Douglas J.
Appeal Determined (QCA)[2015] QCA 14207 Aug 2015Various cost orders made: Fraser JA, Douglas J.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Famestock Pty Ltd v Body Corporate for No 9 Port Douglas Road Community Title Scheme 24368 [2013] QCA 354
1 citation
Jump To
Cite 1 - [2013] QCA 354
Famestock Pty Ltd v The Body Corporate for No 9 Port Douglas Road [2012] QSC 129
1 citation
Jump To
Cite 1 - [2012] QSC 129

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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