Hookey v Whitelaw[2021] QCA 213

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 27 August 2021 the Court dismissed the appeal in this matter and granted leave to the parties to make written submissions about costs within 14 days.  The respondents have lodged such a submission.  On 21 September 2021 the registrar sent an email to the solicitor for the appellants which communicated that the appellants’ submission was overdue and the Court would hand down judgment unless the appellants’ submission was received by 28 September 2021.  No such submission was received by that date.
2. [2]
   Costs should follow the event, there being no reason why a different order should be made.
3. [3]
   The respondents submit that the costs to be awarded against the appellants should be assessed upon the indemnity basis.  The basis of the submission is that “the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis”,^[1] particularly because of “the making of allegations which ought never to have been made” and “the undue prolongation of a case by groundless contentions”.^[2]
4. [4]
   It would be inappropriate to discourage appeals by resorting too readily to orders that the costs payable by an unsuccessful appellant should be assessed upon the indemnity basis upon the ground that arguments favouring the appeal have been found to be unpersuasive.  This appeal is in a different category.  The litigation was unnecessarily prolonged by the appellants bringing an appeal in the absence of a sufficient prospect of success to justify it.  The reasons why the appeal lacked sufficient prospects of success to justify it being brought include:^[3]

   1. (a)
      An important aspect of the appellants’ claim in the Trial Division, and in the grounds of the notice of appeal, was their unsustainable contention that the respondents were legally bound by an alleged oral agreement that was manifestly inconsistent with a registered lease.
   2. (b)
      The pleaded agreement upon which the appellants’ contractual claim was based was alleged to have been made in conversations between Mr Hookey (whose evidence was upon its face capable of supporting only some of the terms of the pleaded agreement) and Mr Whitelaw (whose evidence was inconsistent with any agreement having been concluded).
   3. (c)
      The documentary and other evidence upon which the appellants relied was incapable of proving the pleaded agreement.
   4. (d)
      In the appeal the appellants did not seek to challenge the trial judge’s adverse findings about the credibility of Mr Hookey and the reliability of his evidence about the alleged oral agreement or the trial judge’s favourable findings about the credibility of Mr Whitelaw and the reliability of his evidence.
   5. (e)
      After the respondents had been put to expense in responding to the appellants’ notice of appeal and their outline of submissions, the appellants abandoned the contention described in (a).
   6. (f)
      The appellants thereafter sought to prove an oral agreement that was very different from the pleaded agreement.  The Court applied well known principles when concluding that the appellants should not be permitted to litigate that new case for the first time on appeal.
   7. (g)
      The evidence upon which the appellants relied did not support either the pleaded agreement or the different agreement contended for on appeal.
   8. (h)
      So far as the appeal was based upon an alleged estoppel, the evidence supplied no support for the factual bases of that claim.
5. [5]
   The appropriate order is that the appellants pay the respondents’ costs of and incidental to the appeal, including the costs of the applications to adduce additional evidence in the appeal, assessed on the indemnity basis.