AL Powell Holdings Pty Ltd v Dick - [2012] QCA 254

SUPREME COURT OF QUEENSLAND

CITATION:

AL Powell Holdings Pty Ltd & Anor v Dick & Anor [2012] QCA 254

PARTIES:

AL POWELL HOLDINGS PTY LTD
ACN 073 744 411
(first appellant)
TREKMERE PTY LTD
ACN 082 912 025
(second appellant)
v
WAYNE KENNETH DICK
(first respondent)
ALAN POWELL HOLDINGS PTY LTD
ACN 010 732 500
(second respondent)

FILE NO/S:

Appeal No 2236 of 2012
SC No 1510 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 September 2012

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2012

JUDGES:

Holmes and White JJA and North J
Judgment of the Court

ORDERS:

1.    Appeal against the order refusing leave to appeal the costs order made in the Trial Division allowed.

2.    Appeal against the costs order allowed.

3.    Set aside the order made about costs below on 14 February 2012.

4.    Order instead in terms of the offer made 29 November 2007 that:

(a)     AL Powell Holdings Pty Ltd and Trekmere Pty Ltd pay Wayne Kenneth Dick’s costs calculated on the standard basis up to and including 29 November 2007 being the date of service of the offer, and

(b)     Wayne Kenneth Dick pay AL Powell Holdings Pty Ltd and Trekmere Pty Ltd’s costs of the proceedings including reserved costs, if any, thereafter, calculated on the standard basis.

5.    Order that Wayne Kenneth Dick pay AL Powell Holdings Pty Ltd and Trekmere Pty Ltd’s costs of the appeal against the refusal of leave to appeal and the costs of the appeal against the costs order.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – OTHER MATTERS – COSTS – where appellants sought leave to appeal costs order of primary judge immediately after order handed down – where primary judge refused leave to appeal costs order because of prolonged litigation and in the interests of finality – where primary judge did not receive submissions from appellants – whether primary judge should have received submissions – whether primary judge had weighed relevant considerations – whether primary judge should have refused leave to appeal

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF PARTIES – CONDUCT TENDING TO LITIGATION – where primary judge ordered appellants to pay the first respondent’s costs on a standard basis – where appellants had made prior offers to settle – where matter characterised by primary judge as involving prolonged litigation – where first respondent failed to prove 28 of 30 particulars of oppression – where appellants contended that the first respondent should pay the whole costs of proceedings including reserved costs on standard basis – whether first respondent ought to pay whole costs of the proceedings on standard basis – whether first respondent obtained judgment "not more favourable" than offer to settle

Corporations Act 2001 (Cth), Pt 2F.1, s 461, s 472, Pt 5.5
Supreme Court Act 1995 (Qld), s 253
Uniform Civil Procedure Rules 1999…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] QCA 254
Decision Date: 21 September 2012

CaseChat Overview and Summary

AL Powell Holdings Pty Ltd and Trekmere Pty Ltd appealed against a decision of the primary judge refusing leave to appeal a costs order and the costs order itself. The case was heard in the Supreme Court of Victoria. The appellants contended that the primary judge should have received submissions before refusing leave to appeal and that the order should be set aside in favour of an earlier offer to settle. The primary judge had refused leave to appeal the costs order because of the prolonged litigation and in the interests of finality.

The legal issues before the court included whether the primary judge should have received submissions before refusing leave to appeal, whether the primary judge had weighed the relevant considerations, and whether the primary judge should have refused leave to appeal. The court also considered whether the first respondent should pay the whole costs of the proceedings on the standard basis, given that the appellants had made prior offers to settle and the first respondent had failed to prove many particulars of oppression.

The court held that the primary judge should have received submissions before refusing leave to appeal and that the refusal was unjustifiable. The court found that the first respondent had not obtained a judgment "not more favourable" than the offer to settle. The court allowed the appeal against the order refusing leave to appeal and the costs order itself, setting aside the order made on 14 February 2012. Instead, the court ordered that AL Powell Holdings Pty Ltd and Trekmere Pty Ltd pay Wayne Kenneth Dick’s costs up to 29 November 2007, and that Wayne Kenneth Dick pay the costs of the proceedings thereafter, including reserved costs, on the standard basis.

In addition to the above, the court ordered that Wayne Kenneth Dick pay the costs of the appeal against the refusal of leave to appeal and the costs of the appeal against the costs order. This decision highlights the importance of ensuring that all relevant considerations are weighed before making a decision on costs and the need for submissions to be heard in such matters.

Orders

Orders of the court

1. Appeal against the order refusing leave to appeal the costs order made in the Trial Division allowed.

2. Appeal against the costs order allowed.

3. Set aside the order made about costs below on 14 February 2012.

4. Order instead in terms of the offer made 29 November 2007 that:

(a) AL Powell Holdings Pty Ltd and Trekmere Pty Ltd pay Wayne Kenneth Dick’s costs calculated on the standard basis up to and including 29 November 2007 being the date of service of the offer, and

(b) Wayne Kenneth Dick pay AL Powell Holdings Pty Ltd and Trekmere Pty Ltd’s costs of the proceedings including reserved costs, if any, thereafter, calculated on the standard basis.

5. Order that Wayne Kenneth Dick pay AL Powell Holdings Pty Ltd and Trekmere Pty Ltd’s costs of the appeal against the refusal of leave to appeal and the costs of the appeal against the costs order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	AL Powell Holdings Pty Ltd & Anor v Dick & Anor [2012] QCA 254
PARTIES:	AL POWELL HOLDINGS PTY LTD ACN 073 744 411 (first appellant) TREKMERE PTY LTD ACN 082 912 025 (second appellant) v WAYNE KENNETH DICK (first respondent) ALAN POWELL HOLDINGS PTY LTD ACN 010 732 500 (second respondent)
FILE NO/S:	Appeal No 2236 of 2012 SC No 1510 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	21 September 2012
DELIVERED AT:	Brisbane
HEARING DATE:	28 August 2012
JUDGES:	Holmes and White JJA and North J Judgment of the Court
ORDERS:	1. Appeal against the order refusing leave to appeal the costs order made in the Trial Division allowed. 2. Appeal against the costs order allowed. 3. Set aside the order made about costs below on 14 February 2012. 4. Order instead in terms of the offer made 29 November 2007 that: (a) AL Powell Holdings Pty Ltd and Trekmere Pty Ltd pay Wayne Kenneth Dick’s costs calculated on the standard basis up to and including 29 November 2007 being the date of service of the offer, and (b) Wayne Kenneth Dick pay AL Powell Holdings Pty Ltd and Trekmere Pty Ltd’s costs of the proceedings including reserved costs, if any, thereafter, calculated on the standard basis. 5. Order that Wayne Kenneth Dick pay AL Powell Holdings Pty Ltd and Trekmere Pty Ltd’s costs of the appeal against the refusal of leave to appeal and the costs of the appeal against the costs order.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – OTHER MATTERS – COSTS – where appellants sought leave to appeal costs order of primary judge immediately after order handed down – where primary judge refused leave to appeal costs order because of prolonged litigation and in the interests of finality – where primary judge did not receive submissions from appellants – whether primary judge should have received submissions – whether primary judge had weighed relevant considerations – whether primary judge should have refused leave to appeal PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF PARTIES – CONDUCT TENDING TO LITIGATION – where primary judge ordered appellants to pay the first respondent’s costs on a standard basis – where appellants had made prior offers to settle – where matter characterised by primary judge as involving prolonged litigation – where first respondent failed to prove 28 of 30 particulars of oppression – where appellants contended that the first respondent should pay the whole costs of proceedings including reserved costs on standard basis – whether first respondent ought to pay whole costs of the proceedings on standard basis – whether first respondent obtained judgment "not more favourable" than offer to settle Corporations Act 2001 (Cth), Pt 2F.1, s 461, s 472, Pt 5.5 Supreme Court Act 1995 (Qld), s 253 Uniform Civil Procedure Rules 1999…