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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Nathan v Williams & Anor  QCA 172
JULIAN PAUL ELIZER NATHAN
DANIEL SATKUNAM BALARAJAN WILLIAMS
NATHAN LAWYERS BRISBANE PTY LTD (IN LIQUIDATION)
ACN 154 104 426
Appeal No 7325 of 2019
Court of Appeal
General Civil Appeal – Further Orders
Supreme Court at Brisbane –  QSC 127;  QSC 150 (Boddice J)
18 August 2020
Heard on the papers
Sofronoff P and Philippides JA and Brown J
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW THE EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where the appellant was unsuccessful save for one discrete ground of appeal – where the second respondent played the principal role in defending the successful ground of appeal – where the second respondent otherwise played a limited role in the appeal – where the first respondent deferred to the second respondent regarding the successful ground of appeal – whether the first respondent should be awarded costs on a discounted basis – whether the second respondent should be awarded costs on a discounted basis
Nathan v Williams & Anor  QCA 138, cited
B O'Donnell QC, with P O'Brien, for the appellant
Mullins Lawyers for the appellant
- THE COURT: This Court published its reasons in this appeal on 23 June 2020. The Appellant (Nathan) succeeded on one discrete ground of appeal (Ground 8). Nathan was otherwise unsuccessful on the remaining 11 grounds of appeal.
- Nathan submits that he is entitled to costs on the ground upon which he succeeded, namely Ground 8. Nathan contends that, notwithstanding that he was generally unsuccessful in the appeal, Ground 8 upon which he succeeded was a discrete and separate ground of appeal. That ground was dealt with separately by the parties and the Court, and was opposed by both the First Respondent (Williams) and the Second Respondent (the Company). Nathan submits that the best approach is to provide for a discount of the costs order from the Respondents’ costs which Nathan will be otherwise ordered to pay. Nathan contends that based on a rough apportionment, the discount to the Respondent’s costs should be 15 per cent.
- Williams submits that Nathan should pay each of the Respondents’ costs on appeal given Ground 8 was immaterial to the relief sought by Williams.
- The Company submitted that the appropriate order was that costs should follow the event, and that an order should be made that Nathan pay the Company’s costs of appeal, save for the Company’s costs of appeal with respect to Ground 8. It contends that the Company’s opposition was not improper.
- Ground 8 was a separate and discrete issue in the appeal. As was submitted by the Company, the question of the Bank of Queensland debt (BOQ Debt) which was the subject of Ground 8, was clearly a live issue between the parties at trial. No relief had been sought by Williams in relation to the BOQ Debt at trial. The Company however invited the court to determine the issues in relation to the BOQ Debt, notwithstanding that normally a liquidator would adjudicate on whether the debt was provable or not. In doing so, the Company was seeking to adopt a pragmatic approach to minimise further time and costs. Brown J (with whom Sofronoff P and Philippides JA agreed) found that while it was a live issue at trial between Nathan and Williams, BOQ should have been joined as a necessary party before any order affecting its rights and the recoverability of the debt was made.
- Although Williams opposed Ground 8 in this appeal, he had not originally sought relief as to the BOQ Debt at trial and relied on the provision for liberty to apply in opposing relief in this appeal. Williams otherwise deferred to the Company in oral argument in this appeal regarding Ground 8. Williams was successful in opposing the 11 other grounds of appeal and Ground 8 was fairly insignificant in terms of the substantive arguments raised on this appeal. It is only appropriate for a small discount of 5 per cent to be made in respect of Ground 8 from the costs of Williams that Nathan should otherwise pay given that costs follow the event. The 15 per cent discount proposed by Nathan is excessive and disproportionate to the time and cost spent on this issue in this appeal.
- As set out above, the Company had invited the learned trial judge to make the order in question and played the principal role in defending Ground 8. The Company otherwise played a limited role in this appeal and did not engage in relation to the major point of contention regarding the constructive trust between Nathan and Williams. The Company had only sought to defend the Order the subject of Ground 8 and other Orders made by his Honour as to controversial debts. It is not appropriate, given the minor significance of Ground 8 to the overall appeal, that the Company be ordered to pay Nathan’s costs. Given the limited role of the Company in the appeal, providing for a discount of the costs ordered to be paid is not possible on the material before the Court. The appropriate order is as submitted by the Company, namely that Nathan pay the Company’s costs save as to Ground 8. The appropriate order is that:
- The Appellant pay 95 per cent of the First Respondent’s costs of the appeal on the standard basis.
- The Appellant pay the Second Respondent’s costs of the appeal, save for the Second Respondent’s costs with respect to ground 8 of the appeal, on the standard basis.
 QCA 138 at .
- Published Case Name:
Nathan v Williams & Anor
- Shortened Case Name:
Nathan v Williams
 QCA 172
Sofronoff P, Philippides JA, Brown J
18 Aug 2020