King Tide Company Pty Ltd v Arawak Holdings Pty Ltd
[2021] QCA 91
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- King Tide Company Pty Ltd v Arawak Holdings Pty Ltd[2021] QCA 91
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King Tide Company Pty Ltd v Arawak Holdings Pty Ltd[2021] QCA 91
King Tide Company Pty Ltd v Arawak Holdings Pty Ltd[2021] QCA 91
SUPREME COURT OF QUEENSLAND
CITATION: | King Tide Company Pty Ltd v Arawak Holdings Pty Ltd [2021] QCA 91 |
PARTIES: | KING TIDE COMPANY PTY LTD ACN 602 611 423 (appellant) v ARAWAK HOLDINGS PTY LTD ACN 157 865 195 (respondent) |
FILE NO/S: | Appeal No 456 of 2020 SC No 5530 of 2017 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane – Unreported, 16 December 2019 (Boddice J) |
DELIVERED ON: | 5 May 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 30 October 2020 |
JUDGES: | Morrison and McMurdo JJA and Henry J |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – NEW TRIAL – where parties were agreed that the appeal be allowed and the matter returned to the trial division – where the parties disagreed as to the terms of the remitter – whether the rehearing should be conducted by reference to all the arguments which were before the trial judge, or whether the only question for determination should be that which was the subject of the appeal – whether the court has the power to confine the rehearing to a particular point PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – DEPRIVING SUCCESSFUL PARTY OF COSTS – where the appellant contended costs should follow the event – where the respondent contended the costs should be reserved pending the rehearing – whether costs should be reserved |
COUNSEL: | P Somers for the appellant B W J Kidston and R W Haddrick for the respondent |
SOLICITORS: | Hartnett Lawyers for the appellant Enyo Lawyers for the respondent |
- [1]MORRISON JA: I have read the reasons of McMurdo JA and agree with those reasons and the orders his Honour proposes.
- [2]McMURDO JA: The parties are agreed that this appeal should be allowed, and that the matter be returned to the trial division. However, they disagree as to the terms of that remitter.
- [3]This litigation has an unfortunate history. It commenced in 2016, by a claim by the present appellant for a declaration that a binding contract was made between the parties governing their participation as plaintiffs in a separate proceeding, commenced against other parties, in 2014. The appellant failed at first instance.[1] It unsuccessfully appealed to this Court[2] and failed to obtain special leave to appeal to the High Court.[3] At each stage, the present appellant was ordered to pay the respondent’s costs. Morrison JA ordered that Mr Hartnett, a director of the appellant, be liable with the appellant for the costs of the appeal.[4]
- [4]What followed were disputes about costs. The present dispute concerns the costs of the unsuccessful appeal to this Court. Those costs were the subject of a certificate of a costs assessor which was filed on 6 August 2019. The assessment was challenged, by an application filed in November 2019, upon 11 grounds. The application was dismissed by Boddice J, by an ex tempore judgment on 16 December 2019. The present appeal is against that judgment.
- [5]The first ground in the application before his Honour was that “the costs assessor erred in determining that the respondent’s claim for costs did not infringe the indemnity principle”. His Honour recorded the appellant’s argument as being that the costs agreement between the respondent and its lawyers provided for costs to be recoverable only in the event that the respondent was not only successful, but also was paid by the appellant an amount for costs.[5] His Honour interpreted the costs agreement, which the respondent then said contained the relevant terms, as making the respondent liable to pay its lawyers regardless of whether it recovered an amount for costs from the appellant. I will refer to this first ground for the challenge to the costs assessor’s decision as the indemnity point.
- [6]The present appeal lists a number of grounds, but all of them involve the indemnity point. There is no challenge to the judge’s reasons for disposing of other grounds which the appellant then advanced. For example, there is no challenge to his Honour’s rejection of the argument that the assessor ought not to have allowed for two junior counsel.
- [7]According to the grounds listed in the application before Boddice J, there was no challenge to the respondent’s case, upon which the costs assessor had proceeded, that the agreement between the respondent and its lawyers was recorded by a certain document. However, in the course of the argument before his Honour, Mr Hartnett, who is also a solicitor and was then appearing as such for the appellant, suggested that the court did not have “possession of all documents that go to make up the costs agreement between [the respondent and its lawyers]”. His Honour asked Mr Hartnett for the basis for that assertion, which Mr Hartnett could not then provide.
- [8]Unfortunately, his Honour was not informed that there were further documents which recorded the terms of the agreements between the respondent, its solicitors and its counsel. Those further documents have now been provided to the appellant, but only since the commencement of this appeal. This Court was informed by counsel for the respondent that the effect of these documents is the same as that document which was considered by Boddice J. Nevertheless, the appellant does not accept that the true terms of the agreements between the respondent and its lawyers have now been disclosed. In these circumstances, the parties have agreed that there is a factual question in that respect which needs to be determined, and in the trial division. It is unfortunate that Boddice J was not given a full picture, which might have produced a more expeditious conclusion to this dispute.
- [9]Given the concession made by the respondent, that there is a factual question of that kind to be resolved, this Court should accede to the parties’ request that the appeal be allowed and the case remitted to the trial division. Two questions, however, remain.
- [10]The first of them is whether the reconsideration of the appellant’s application (to set aside the assessor’s certificate) should be by reference to each of the grounds advanced by the appellant before Boddice J (as the appellant suggests) or whether the challenge should now be limited to the indemnity point (as the respondent suggests). Given that the decision of Boddice J was appealed only on the indemnity point, it seems to be appropriate to limit the rehearing of this application to that point. The appellant suggests that this course would be impermissible, having regard to the judgments of the High Court in Waterways Authority v Fitzgibbon.[6]
- [11]The respondent in that case was rendered quadriplegic when he fell from a jetty. He sued the Waterways Authority (and other parties) for damages for negligence. He failed at first instance, because the trial judge found that he had deliberately dived, rather than fallen, into the water. The New South Wales Court of Appeal considered that the trial judge had failed to give adequate reasons for rejecting a body of evidence that the respondent had not entered the water voluntarily. The Court of Appeal ordered a retrial, but on the basis that the respondent had already established that he entered the water involuntarily. A majority of the High Court reversed that judgment, and substituted an order that there be a new trial of the action generally. However the reasoning of the majority was not that the Court of Appeal lacked a power to confine the issues of a new trial; instead, the question was the appropriateness of the manner of the exercise of the Court’s powers in the circumstances of that case.[7]
- [12]In the present case, the Court has ample powers to confine the rehearing of this application to the indemnity point. That can, and should, be done by striking out grounds 2 through 11 of the application filed on 22 November 2019, leaving ground 1 which involves the indemnity point.
- [13]The other issue concerns the costs of this appeal. For the appellant, it is said that the respondent should pay its costs of the appeal, and the money held in court in this proceeding, as security for the respondent’s costs, should be released and paid to the appellant. The respondent submits that the costs of the appeal should be reserved, and that there should be no order at present about the money held as security for costs.
- [14]It is true that costs ordinarily follow the event, and that this appeal is being allowed. However, the respondent’s submission, namely that the rehearing of the indemnity point may prove to be futile and it then would be unjust for the respondent to bear the costs of this appeal, is persuasive. The costs of this appeal should be reserved.
- [15]I would order as follows:
- Allow the appeal.
- Set aside the orders 1 and 2 made on 16 December 2019.
- Strike out the grounds numbered 2 through 11 of the application filed on 22 November 2019.
- The application, filed on 22 November 2019, be reheard in the trial division.
- The costs of this appeal be reserved.
- [16]HENRY J: I agree with the reasons of McMurdo JA and the orders proposed by his Honour.
Footnotes
[1] King Tide Company Pty Ltd v Arawak Holdings Pty Ltd [2017] QSC 70.
[2]King Tide Company Pty Ltd v Arawak Holdings Pty Ltd [2017] QCA 251.
[3] King Tide Company Pty Ltd v Arawak Holdings Pty Ltd [2018] HCATrans 188.
[4] King Tide Company Pty Ltd v Arawak Holdings Pty Ltd [2018] QCA 148.
[5] See King v King & Ors [2012] QCA 81.
[6] (2005) 79 ALJR 1816.
[7] See eg. Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816, 1820 per Gleeson CJ at [15].