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- Appeal Determined (QCA)
QNI Metals Pty Ltd v Parbery (No 2) QCA 324
SUPREME COURT OF QUEENSLAND
QNI Metals Pty Ltd & Ors v Parbery & Ors  QCA 324
QNI Metals Pty Ltd
Appeal No 6561 of 2018
SC No 6593 of 2017
Court of Appeal
Application for Stay of Execution – Further Orders
Supreme Court at Brisbane –  QSC 125 (Bond J)
20 November 2018
Heard on the papers
The appellants are to pay the respondents’ costs of the stay application as follows:
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellants’ application for a stay of certain orders in a suite of freezing orders was discontinued and dismissed – where an analogous application by a separate appellant had earlier been dismissed – where notification of the discontinuance of the application was very late – whether the appellants should pay the respondents’ costs on the indemnity basis
Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225;  FCA 536, cited
QNI Metals Pty Ltd & Ors v Parbery & Owen in their Capacities as Liquidators of Queensland Nickel Pty Ltd (Controller Appointed) (In Liq) & Anor  QCA 139, considered
S M Iskander (sol) for the appellant
G Gibson QC, with A Rae, for the respondent
Alexander Law for the appellant
King & Wood Mallesons for the respondent
- GOTTERSON JA: The appellants’ application for a stay of certain orders was discontinued by them and dismissed by consent by order made by me on 7 August 2018. That order made provision for the parties to make short written submissions on costs which they have done.
- It is common ground that the appellants should pay the respondents’ costs of the stay application. However, they are in disagreement as to whether the appellants should do so on an indemnity basis, as the respondents submit; or on the standard basis, as the appellants submit.
- The application was filed by the appellants on 22 June 2018. As an analogous application filed earlier by Mr C F Palmer had sought, this application requested a stay of Orders 16 and 17 in a suite of freezing orders made on 25 May 2018 against which Mr Palmer and the appellants had separately appealed. Orders 16 and 17 required the supply of information as to assets, and their estimated values, of Mr Palmer and the appellants.
- The appellants’ stay application was mentioned before me on 26 June 2018 when I heard and determined Mr Palmer’s stay application. His application was dismissed with reasons delivered ex tempore at the hearing.
- The directions made for the appellants’ stay application culminated in a hearing of it to take place before me at 10am on 7 August 2018. That date was chosen because it was within a range of dates for which senior counsel for the appellants would be available, and notwithstanding that senior counsel for the respondents would not be available, with the consequence that other senior counsel would have to be briefed by them.
- It appears that there was compliance with directions as to filing of evidentiary material and exchange of written outlines of argument with respect to the appellants’ stay application. Notably, the respondents’ written outline of argument was supplied to the appellants’ solicitors on 23 July 2018.
- I accept unchallenged evidence in an affidavit sworn by Mr L T Hennessy, solicitor, who acts for the respondents, on 14 August 2018 that by email correspondence received by his firm at 12.47 pm on 6 August 2018, the respondents first received notice that the appellants did not intend to proceed with the stay application. Several minutes later, his firm was copied in on an email sent by the appellants’ solicitors to the Court of Appeal Registry advising of the discontinuance of the stay application and attaching a draft order to effectuate a dismissal of it by consent.
- Neither item of correspondence offered a reason or reasons for the discontinuance or why it was not intimated to the respondents’ solicitors earlier than it was. No affidavit has been sworn attesting to such a reason or reasons.
- It is well settled that some “special or unusual feature” is required for displacement of the ordinary rule that costs are to be awarded on the standard basis in favour of an award of costs on the indemnity basis.
- In my view, there are special features here that together warrant an award of indemnity costs in respect of costs incurred by the respondents after 26 June 2018. They are as follows.
- Firstly, the appellants ought to have appreciated from the reasons given by me on 26 June 2018 that the grounds that had been advanced by Mr Palmer for a stay of Orders 16 and 17 were without foundation. No other and viable ground or grounds that might have been advanced by the appellants were then or subsequently indicated by them.
- Secondly, the appellants knew from the mention on 26 June 2018 that the respondents were being put to the inconvenience and cost of having to brief substitute senior counsel for the hearing on 7 August 2018.
- Thirdly, notification of the discontinuance of the application was very late.
- Fourthly, there is an absence of any reason or reasons given for either the discontinuance itself or for the extreme lateness in giving notice of it.
- I note that the appellants suggest in their written submissions on costs that it was when they received and understood the respondents’ outline of argument that they realised the vulnerability of their case on the stay application. I treat that suggestion with some reservation given the dismissal of Mr Palmer’s analogous application. Moreover, this suggestion does not explain delay beyond 23 July 2018 in notifying the respondents’ solicitors of the discontinuance.
- For these reasons, I order that the appellants are to pay the respondents’ costs of the stay application as follows:
- for costs incurred up to and including 26 June 2018, on the standard basis; and
- for costs incurred after 26 June 2018, on the indemnity basis.
 Colgate Palmolive Company v Cussons Pty Ltd  FCA 536; (1993) 46 FCR 225 at 230.
- Published Case Name:
QNI Metals Pty Ltd & Ors v Parbery & Ors
- Shortened Case Name:
QNI Metals Pty Ltd v Parbery (No 2)
 QCA 324
20 Nov 2018
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 231||17 Oct 2017||Application by defendant Mr Palmer for Bond J to recuse himself; application for an adjournment of the plaintiffs' application for a freezing order; both applications dismissed: Bond J.|
|Primary Judgment|| QSC 107||25 May 2018||Upon undertakings made by the Commonwealth, and the special purpose liquidators, freezing orders made with respect to the first, second, fourth, seventh, eighth, ninth, tenth, eleventh, twelfth, fourteenth and fifteenth defendants: Bond J.|
|Primary Judgment|| QSC 125||25 May 2018||Application to stay orders made in  QSC 107 for 21 days dismissed, save for orders 16 and 17 which are stayed until further order: Bond J.|
|Primary Judgment|| QSC 141||11 Jun 2018||Stay of operation of orders 16 and 17 ordered 25 May 2018 discharged; order 16 set aside and in lieu thereof order that each defendant must swear an affidavit setting out their assets and details about those assets: Bond J.|
|Primary Judgment|| QSC 176||27 Jul 2018||Defendants' agitation that nothing should be determined until a proposed recusal application heard and determined rejected: Bond J.|
|Primary Judgment|| QSC 177||27 Jul 2018||Plaintiffs' application for disclosure adjourned to 3 August 2018: Bond J.|
|Primary Judgment|| QSC 178||03 Aug 2018||Defendants' application for a stay of orders dismissed: Bond J.|
|Primary Judgment|| QSC 180||03 Aug 2018||Plaintiffs' application for disclosure granted: Bond J.|
|Primary Judgment|| QSC 213||17 Sep 2018||Application that Bond J recuse himself granted; proceedings transferred to Jackson J and other ancillary orders: Bond J.|
|Primary Judgment|| QSC 240||22 Oct 2018||Defendants' application (except the fourth, twentieth and twenty-first defendants) for leave to proceed with the counterclaim dismissed (except counterclaim not struck through); plaintiffs' application for defence and counterclaim to be struck out granted with leave; defendants' application for strike-out of the consolidated statement of claim allowed in part; hearing adjourned to a date to be fixed; costs reserved: Jackson J.|
|Primary Judgment|| QSC 245||26 Oct 2018||Defendants' applications for recusal of Jackson J filed 19 October 2018 commence instanter; applications for recusal of Jackson J be adjourned to 1 November 2018 and ancillary directions: Jackson J.|
|Primary Judgment|| QSC 249||05 Nov 2018||Application that Jackson J recuse himself from hearing the trial of the proceeding granted on the ground of apprehended bias (dismissed on the ground of actual bias); application that Jackson J recuse himself from taking any further part in the proceeding, including any interlocutory applications, dismissed: Jackson J.|
|Primary Judgment|| QSC 276||21 Nov 2018||Defendants' applications to vacate orders made in  QSC 176 and  QSC 180 dismissed in substance; extended times for directions for discovery and evidence made: Jackson J.|
|Primary Judgment|| QSC 48||11 Mar 2019||Defendants' application to increases the scope of disclosure and for extensions of time for the delivery of lay and expert evidence dismissed: Jackson J.|
|Primary Judgment|| QSC 207||23 Aug 2019||First, second, seventh, fifteenth, sixteenth and twenty-second defendants' application for either a permanent stay of this proceeding as an abuse of the process of the court or a stay pending the final determination of proceeding BS13947/18: application dismissed: Mullins J.|
|Primary Judgment|| QSC 143||03 Jun 2020||Plaintiffs' claims against the seventh defendant, Mineralogy Pty Ltd, to recover alleged funds loaned from Queensland Nickel Pty Ltd to Mineralogy Pty Ltd dismissed; declared that various transactions entered into by Queensland Nickel Pty Ltd are voidable under s 558FE of the Corporations Act 2001 (Cth) (as uncommercial transactions) together with declaratory relief that the transactions are void ab initio: Mullins J.|
|QCA Interlocutory Judgment|| QCA 139||26 Jun 2018||Fourth defendant's application to stay orders made in  QSC 107 allowed in part and otherwise dismissed: Gotterson JA.|
|QCA Interlocutory Judgment|| QCA 287||23 Oct 2018||Application for a stay of the orders made by Bond J in  QSC 180 dismissed: Philippides JA.|
|Notice of Appeal Filed||File Number: Appeal 11834/17||10 Nov 2017||Appeal from  QSC 231|
|Notice of Appeal Filed||File Number: Appeal 7119/20||30 Jun 2020||Appeal from  QSC 143.|
|Appeal Discontinued (QCA)||File Number: Appeal 11834/17||22 Feb 2018||Appeal from  QSC 231 dismissed by consent.|
|Appeal Determined (QCA)|| QCA 268||12 Oct 2018||Costs judgment from fourth defendant's application to stay certain orders ( QSC 176;  QSC 178) that was earlier dismissed (after having been abandoned one day prior): Morrison JA.|
|Appeal Determined (QCA)|| QCA 302||05 Nov 2018||Appeals from  QSC 178 and  QSC 213 dismissed with costs: Fraser and Gotterson JJA and Boddice J.|
|Appeal Determined (QCA)|| QCA 324||20 Nov 2018||Costs judgment from defendants' application to stay certain orders  QSC 125 that was earlier dismissed by consent: Gotterson JA.|
|Appeal Determined (QCA)|| QCA 27||22 Feb 2019||Appeals from  QSC 107 (freezing orders) dismissed: Fraser and Gotterson and McMurdo JJA.|