AIG Australia Limited v Sudale

[2022] QCA 209

SUPREME COURT OF QUEENSLAND

CITATION:

AIG Australia Limited v Sudale & Anor [2022] QCA 209

PARTIES:

AIG AUSTRALIA LIMITED
ABN 93 004 727 753
(applicant)
v
ALLAN SUDALE
(first respondent)
COMMUNITY BROKER NETWORK PTY LTD (ACN 096 916 184) t/as COMMUNITY BROKER NETWORK
(second respondent)

FILE NO/S:

Appeal No 4682 of 2022
DC No 52 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil – Further Orders

ORIGINATING COURT:

District Court at Brisbane – Unreported, 4 April 2022 (Jarro DCJ)

DELIVERED ON:

25 October 2022

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

McMurdo and Bond and Dalton JJA

ORDERS:

1.   Vacate the order made on 30 August 2022 that there be no order as to costs.

2.   The respondents pay the applicant’s costs of the application for leave to appeal and the appeal from 20 April 2022 on a standard basis to be assessed or agreed.

3.    The respondents pay the applicant’s costs reserved by Barlow KC DCJ on 14 April 2022 and 29 April 2022 on a standard basis to be assessed or agreed.

4.   The respondents pay the applicant’s costs of and incidental to this costs application. 

COUNSEL:

K J Horsley for the applicant
J E FitzGerald and M H Daley for the first and second respondents

SOLICITORS:

Carter Newell Lawyers for the applicant
Thynne & Macartney for the first and second respondents

1. McMURDO JA:  I agree with Dalton JA.

2. BOND JA:  I agree with the reasons for judgment of Dalton JA and with the orders proposed by her Honour.

3. DALTON JA:  On 4 April 2022 Jarro DCJ made an order compelling the applicant to provide documents to the respondents.  The documents had been sought in a notice of non-party disclosure.  On 30 August 2022 this Court allowed an appeal from that order and substituted orders which, although they still compelled the applicant to provide some documents to the respondents, meant that irrelevant and privileged documents were no longer ordered to be provided.

4. The parties had made no submissions as to costs in their written outlines.  Nor was there any indication that there were costs submissions to be made after judgment.  Thus my decision on appeal (with which McMurdo and Bond JJA agreed) included as its final paragraph:

   “So far as costs are concerned, it seems to me that both parties have had mixed success both below and on appeal.  It also seems to me that the issues disputed before the primary judge, and on this appeal, could have been settled sensibly between the parties by agreement.”

5. When judgment was delivered the applicant sought, and the parties were given, leave to make further written submissions as to costs.

6. The applicant filed this application asking for its costs of the application for leave to appeal; appeal, and this costs application on an indemnity basis, or failing that on a standard basis.  It did so on the basis that on 13 April 2022 and again on 27 April 2022 it sent Calderbank letters to the respondent offering to provide all the documents the subject of Jarro DCJ’s order, save for privileged documents.  The applicant obtained a result better than these offers on the appeal.

7. The Calderbank offers are certainly matters to be considered so far as costs of the application for leave to appeal, the appeal, and this costs application are concerned.  Having regard to them it seems to me that the appropriate course is to vacate the 30 August 2022 order that there be no order as to costs of the application for leave to appeal and the appeal.  An order that the respondents pay the costs of the application for leave to appeal and appeal, from a reasonable time after the first Calderbank offer was made, should be substituted.  In addition, an order should be made that the respondents pay the costs of this costs application.

8. In my view, these costs should be assessed on a standard basis.  There has been no contumelious behaviour on the part of the respondents and, having regard to the terms of the original judgment in the District Court, I do not think that failure to accept the Calderbank offers was so unreasonable as to warrant an award of indemnity costs.

9. The applicant also seeks costs reserved by Barlow KC DCJ.  The applicant made an urgent application to stay the decision of Jarro DCJ pending appeal.  Barlow KC DCJ granted that stay, and later extended it; on both occasions he reserved costs.  The respondents object to this Court dealing with those reserved costs on the grounds that the orders made by Barlow KC DCJ were not the subject of the appeal.  That is true, but they were closely incidental to it; all relevant material is before this Court on affidavit, and it is convenient in terms of time and costs considerations that this Court deal with those reserved costs.

10. The applicant submits that it should have its costs because on the same day it filed the application for a stay it asked the respondent to consent to the orders it sought.  The respondents refused, although they did offer not to enforce the order of Jarro DCJ.  In my view, it was reasonable for the applicant to proceed to obtain orders from Barlow KC DCJ in circumstances where otherwise, on the basis proposed by the respondents, it would have been in breach of the orders of Judge Jarro.

11. In my view the orders on this costs application should be:

    (a)The respondents pay the applicant’s costs of the application for leave to appeal and the appeal from 20 April 2022 on a standard basis to be assessed or agreed.

    (b)The respondents pay the applicant’s costs reserved by Barlow KC DCJ on 14 April 2022 and 29 April 2022 on a standard basis to be assessed or agreed.

    (c)The respondents pay the applicant’s costs of and incidental to this costs application.