Wilson v Cobble Patch Loganlea Pty Ltd (No. 2)
[2015] QDC 271
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- Unreported Judgment
- Wilson v Cobble Patch Loganlea Pty Ltd (No. 2)[2015] QDC 271
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Wilson v Cobble Patch Loganlea Pty Ltd (No. 2)[2015] QDC 271
Wilson v Cobble Patch Loganlea Pty Ltd (No. 2)[2015] QDC 271
DISTRICT COURT OF QUEENSLAND
CITATION: | Wilson v Cobble Patch Loganlea Pty Ltd (No. 2) [2015] QDC 271 |
PARTIES: | ROBERT JAMES WILSON (applicant/appellant) v COBBLE PATCH LOGANLEA PTY LTD (respondent) |
FILE NO/S: | BD 2842/14 |
DIVISION: | Civil |
PROCEEDING: | Appellate |
ORIGINATING COURT: | Magistrates Court at Beenleigh |
DELIVERED ON: | 5 November 2015 |
DELIVERED AT: | Brisbane |
JUDGE: | Farr SC DCJ |
ORDER: |
|
CATCHWORDS: | COSTS – where costs follow the event – whether an Indemnity Certificate should be issued. Appeal Costs Fund Act 1973 Uniform Civil Procedure Rules 1999 Wilson v Cobble Patch Loganlea Pty Ltd [2015] QDC 235 Cachia v Isaacs & Ors [1989] NSWCA 31 Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) FCA 536 Mitchell v Pacific Dawn Pty Ltd [2003] QCA 526 Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162549 |
COUNSEL: | L A Stephens for the applicant/appellant. |
SOLICITORS: | Nil for the applicant/appellant. Alex Mackay & Co. for the respondent. |
- [1]Judgment was delivered in this matter on 24 September 2015.[1]
- [2]The applicant/appellant now seeks an order for costs in the following terms:
- (a)The respondent pay the applicant’s costs of the application for leave to appeal and the appeal to be agreed or assessed.
- (b)The respondent pay the applicant’s costs of and incidental to the respondent’s application for summary judgment in Action No. 448 of 2013 in the Beenleigh Magistrates Court on scale F of that Court to be agreed or assessed.
- [3]The respondent does not resist an order for costs in favour of the applicant, although it is submitted that it should be in the following terms:
- (a)The respondent pay the appellant’s costs of the appeal on a standard basis limited to actual out of pocket expenses.
- (b)The respondent pay the appellant’s costs of the application for summary judgment filed 23 April 2014 on a standard basis on the Magistrates Court scale not over $50,000.
- [4]The respondent submits that the costs of the appeal should be limited to actual out of pocket expenses because the applicant had not engaged a solicitor for the appeal and his counsel appeared on a direct access brief. In support of that submission, the respondent relies on the following passage in Cachia v Isaacs & Ors[2]by Samuels JA (with whom Clarke JA agreed) at p 16:
“there is a well established line of authority in England and Australia which establishes the proposition that a litigant in person, who is not a solicitor, is not entitled to claim costs in respect of the time expended in preparing and presenting his or her case, but may recover only out-of-pocket expenses.”
- [5]That proposition however has no application to this matter as the applicant was not a litigant in person – he was represented by counsel. In such circumstances, there is no requirement that a costs order be restricted to “actual out of pocket expenses”.
- [6]Furthermore, there are no special or unusual features, nor special circumstances in the appeal or in the application for summary judgment to justify the making of orders other than for standard costs.[3]
- [7]Rule 681 of the Uniform Civil Procedure Rules1999 provides that costs of a proceeding, including an application in a proceeding, are in the discretion of the Court but follow the event, unless the Court orders otherwise. In this matter there is no reason to depart from that rule.
Application for Indemnity Certificate
- [8]The respondent has applied for an Indemnity Certificate pursuant to s 15(2) of the Appeal Costs Fund Act1973.
- [9]Section 15(2) states:
“(2)Where an appeal against the decision of a court to the District Court on a question of law succeeds, the District Court may, upon application made in that behalf, grant to any respondent to the appeal an Indemnity Certificate in respect of the appeal.”
- [10]The power to grant an Indemnity Certificate is discretionary[4]and the Act does not specify criteria for the exercise of the discretion other than that the appeal must have succeeded on a question of law.
- [11]
“Failure by the Judge to give adequate reasons was held on appeal in Pettitt v Dunkley [1971] 1 NSWLR 376, to constitute an error in law. When, as happened in the present case, that failure was attributable not to the parties but to the Judge, and the appeal succeeds on that ground, it is an appropriate case under s 15(1) of the Appeal Costs Fund Act 1973 in which to grant an Indemnity Certificate having the effects and incidents set out in s 16 of that Act.”
- [12]In this matter the learned magistrate’s failure to give reasons as to why Ankar Pty Ltd v National Westminster Finance (Australia) Ltd[6]was of no relevance to the issue was an error of law.
- [13]It follows this is an appropriate matter to issue an Indemnity Certificate relating to the appeal. I note that paragraph 29 of Supreme Court Practice Direction 3 of 2015 requires an application for an Indemnity Certificate to be made either orally, at the hearing, or within 14 days of delivery of judgment. This application was made on 13 October 2015 and therefore falls outside that timeframe, although only by five days. In the circumstances given that no prejudice has arisen as a consequence of the delay and the delay is of short duration, it is appropriate to grant leave (if that is necessary) to extend the time within which the application can be brought.
Orders
- [14]The orders of the Court are:
- The respondent pay the applicant/appellant’s costs of the Application for Leave to Appeal and the Appeal to be agreed or assessed on the standard basis.
- The respondent pay the applicant/appellant’s costs of the application for summary judgment in Action No. 448 of 2013 in the Beenleigh Magistrates Court, on scale F for that Court, to be agreed or assessed.
- The respondent is granted leave to make application on 13 October 2015 for the issue of a certificate pursuant to s 15(2) of the Appeal Costs Fund Act 1973.
- [15]I will sign the certificate in chambers when it is prepared and delivered to my associate.