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Kimber v Kimama Holdings Pty Ltd (No 2)[2020] QDC 229

Kimber v Kimama Holdings Pty Ltd (No 2)[2020] QDC 229

DISTRICT COURT OF QUEENSLAND

CITATION:

Kimber & Anor v Kimama Holdings Pty Ltd trading as Visual Diversity Homes (No. 2) [2020] QDC 229

PARTIES:

COLIN GRAHAM KIMBER AND LYNETTE MARY MANWARING

(Appellants)

v

KIMAMA HOLDINGS PTY LTD TRADING AS VISUAL DIVERSITY HOES (ACN 106 627 829)

(Respondent)

FILE NO:

3611/19

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

18 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Byrne QC DCJ

ORDERS:

  1. The respondent pay the appellants’ costs of and incidental to the appeal.
  2. The costs of and incidental to the first hearing of the matter that concluded with judgment delivered in September 2019 be determined by the Magistrate at the conclusion of the new hearing of the proceeding.
  3. The respondent’s application for an indemnity certificate under the Appeals Costs Fund Act 1973 is refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the appellant is successful on appeal and a re-hearing is ordered – whether costs follow the event and be granted on the standard basis – whether the costs of the original hearing should be awarded to one party or determined by the Magistrate conducting the re-hearing.

LEGISLATION:

Appeals Costs Fund Act 1973 (Qld) s 15.

CASES:

Brittain v Commonwealth (No 2) [2004] NSWCA 427.

Eversden v Miladi [2015] QCA 203.

International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319.

Kimber & Anor v Kimama Holdings Pty Ltd trading as Visual Diversity Homes [2020] QDC 203.

Martin v Rowling & anor [2005] QCA 174.

Spencer v Burton [2015] QCA 145.

The Queensland Local Government Superannuation Board v Allen [2017] QCA 201.

COUNSEL:

Mr. P. Travis for the appellants.

Mr. K. Wylie for the respondent.

SOLICITORS:

Aden Lawyers Pty Ltd for the appellants.

Carter Newell Lawyers for the respondent.

Introduction

  1. [1]
    On 28 August 2020 judgment was given in favour of the appellants, and the matter was remitted for rehearing.[1] These are my reasons and orders in respect of the issue of costs, the parties having been invited to make written submissions on the topic.

The parties’ contentions

  1. [2]
    The appellants submit that the costs of the appeal should follow the event and that the appellant should be granted the costs of the appeal on the standard basis. The respondent does not disagree. This is clearly appropriate.
  2. [3]
    As to the costs from the original hearing, the appellant submits that the usual rule where there is no fault on the part of the parties and where a rehearing is ordered, is that the costs of the trial below abide the result of the rehearing. They however submit that where there is fault on the part of one of the parties, it is unjust to burden the other party with the costs of the first hearing, if they do not succeed on the rehearing. They contend that the first hearing miscarried because of the fault of the respondent and submit that they should be awarded costs on an indemnity basis, citing Brittain v Commonwealth (No 2).[2] Alternatively, they submit that they should be awarded their costs on the standard basis.
  3. [4]
    The respondent submits that I should not consider any order concerning the costs of the first hearing as I did not invite submissions on that topic, and further that I am functus officio on the issue. The respondent emphasises the precise wording of my reasons under the heading of “Costs” in referring to “costs of the appeal” to support the former submission, and refers to International Finance Trust Co Ltd v New South Wales Crime Commission[3] to support the latter.
  4. [5]
    If that primary submission is not accepted, the respondent submits that whilst in special circumstances the conduct of a litigant below may mean that it is appropriate to order that one party pay the other party’s costs below, this is not such a case. It is submitted that what is said to be the “general rule” should apply, namely that the costs from the first hearing should be costs in the cause. Alternatively, it is submitted that the order should be that the costs of the first hearing be determined by the Magistrate hearing the remitted hearing.
  5. [6]
    Finally the respondent submits that I should issue in its favour an indemnity certificate under section 15(2) of the Appeal Costs Funds Act 1973.
  6. [7]
    The appellants have replied to each of the respondent’s contentions, apart from the issue of an indemnity certificate.

Consideration

  1. [8]
    I consider that I have power to consider the issue of costs of the first hearing, and that I should do so in this matter.
  2. [9]
    Although the body of the reasons referred to “costs of the appeal” and not expressly to the costs of the first hearing, it is well accepted that the power on appeal to deal with costs extends to the costs of the first hearing. The orders refer to “the issue of costs”, and reflect the widely acknowledged power. Further, the reasons themselves record the basis on which orders were sought in the appeal as including “orders concerning the costs ordered below and the costs in this Court”.[4] This in turn was a reflection of the grounds of appeal.
  3. [10]
    In my view, the reference to International Finance Trust Co Ltd v New South Wales Crime Commission is inapt. In the cited passage of the joint dissenting judgment, the members of the Court were referring to a general proposition, before then going on to consider an exception as to the reopening of orders made ex parte. They were not considering the power to make consequential orders as to costs arising on an appeal. In this case I had allowed the appeal and vacated the orders below, including the order as to costs and am now considering the issue of an appropriate order as to the costs below. Rather than being functus officio, I am dealing with a live issue directly arising from the appeal.
  4. [11]
    As is always the case, my discretion as to costs is at large, and the order made should attempt to do justice in the particular circumstances of the matter.
  5. [12]
    When a new trial is ordered, the usual order is that the costs of the first trial follow the result of the re-trial, unless the conduct of one party cased the need for the new trial. In that circumstance it may be appropriate to order that party pay the costs of the first trial.[5]
  6. [13]
    Despite each party seeking to attribute fault solely to the other side, as my reasons for judgment in the substantive appeal demonstrate fault did not lie at the feet of only one party. In my view both parties’ Counsel in raising and responding to the objection unintentionally resulted in the erroneous upholding of the objection taken to the cross-examination. It is not an appropriate case in which to order, at this stage, that the costs below are to be paid by one party only.
  7. [14]
    I do not detect any reason to depart from the usual order. In that event, the appellant submits the form of the order should be that the costs of the aborted trial should abide the result of the second trial, while the respondent submits that the order should be that the costs of the first trial are costs in the cause. I need not consider whether there is much, if any, practical difference in the two forms of the order. My order will follow the form of the orders made in each of the authorities directly cited in the footnote in paragraph 11 herein.
  8. [15]
    The respondent submits that as the error was one of law, the Court’s discretion to issue an indemnity certificate under section 15(2) of the Appeals Costs Fund Act 1973 is enlivened, and repeats submissions to the effect that the fault did not lie at the feet of the respondent.  I have already observed that, in my view, fault lies with both parties, albeit fault that was unintentional.
  9. [16]
    Whether or not the party’s conduct and submissions has contributed to the error which gives rise to the successful appeal has long been recognised as a relevant discretionary factor in an application of this nature.[6] Here, the respondent maintained a submission which did not directly deal with the admittedly opaque basis on which the cross-examination was said to be admissible. The respondent’s submission did not seek to clarify the basis for admissibility, and contributed to the erroneous ruling. In making the submission, Counsel assumed the risk that his submission was wrong, and that risk extends to the risk that an indemnity certificate will not be granted on an appeal.
  10. [17]
    The application for an indemnity certificate is refused.

Footnotes

[1] Kimber & Anor v Kimama Holdings Pty Ltd trading as Visual Diversity Homes [2020] QDC 203.

[2] [2004] NSWCA 427, [33].

[3] (2009) 240 CLR 319, [129].

[4] Kimber v Kimama, supra at [8].

[5] Martin v Rowling & anor [2005] QCA 174, [10]; Spencer v Burton [2015] QCA 145, [18] and cases cited in each of those authorities.

[6] See for example Spencer v Burton, supra at [23]; Eversden v Miladi [2015] QCA 203, [3]; The Queensland Local Government Superannuation Board v Allen [2017] QCA 201, [6].

Close

Editorial Notes

  • Published Case Name:

    Colin Graham Kimber and Lynette Mary Manwaring v Kimama Holdings Pty Ltd trading as Visual Diversity Homes (No 2)

  • Shortened Case Name:

    Kimber v Kimama Holdings Pty Ltd (No 2)

  • MNC:

    [2020] QDC 229

  • Court:

    QDC

  • Judge(s):

    Byrne DCJ

  • Date:

    18 Sep 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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