RICHARD MOLLISON ALBORN (first plaintiff/first appellant) ALBORN FAMILY CORPORATION PTY LTD ACN 080 955 595 (second plaintiff/second appellant) SHAYKAR PTY LTD ACN 076 868 552 (third plaintiff/third appellant) v RAY STEPHENS (first defendant/first respondent) GLENYS MARGARET STEPHENS (second defendant/second respondent) A S & L PTY LTD ACN 087 729 048 (third defendant/third respondent)
FILE NO/S:
Appeal No 9392 of 2009 SC No 7795 of 2006
DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal – Further Order
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
19 March 2010
DELIVERED AT:
Brisbane
HEARING DATE:
25 November 2009
JUDGE:
Holmes and Muir JJA and Daubney J
Separate reasons for judgment of each member of the court, each concurring as to the orders made
ORDERS:
1. The respondents pay half of the appellants’ costs of the appeal;
2. The primary judge’s order that the plaintiffs pay the defendants’ costs on a standard basis of and incidental to the action (including reserved costs), except for so much of the trial taken up with the need to obtain supplementary disclosure by the defendants, be set aside, and that the costs of the proceeding incurred on and prior to 20 November 2009 be reserved to the primary judge for determination by reference to the reasons of this Court delivered on 11 December 2009 upon determination of the proceeding, or at such other time as the primary judge may order;
3. The Order that “The defendants are to pay the plaintiffs’ costs on the standard basis of so much of the trial as was taken up by the need to obtain supplementary disclosure by the defendants” will stand.
CATCHWORDS:
PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF THE ISSUES – where the appellants failed on one of the two main issues on appeal – whether to depart from the general rule that costs follow the event – whether the respondents should be awarded an indemnity certificate
PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – GENERALLY – where proceeding remitted to primary judge for hearing and determination in accordance with the reasons given on appeal – whether costs orders at first instance should be set aside and costs matters remitted to the primary judge for determination
[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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AGLC
Alborn v Stephens [2010] QCA 58
Case
[2010] QCA 58
Decision Date
CaseChat Overview and Summary
The case of Alborn v Stephens involved the appellants, Alborn, seeking relief against the respondents, Stephens. The dispute pertained to the allocation of costs in the context of an appeal from a decision made by the primary judge in the Supreme Court of Queensland. The appellants were not entirely successful in their appeal, having failed on one of the two primary issues contested. Consequently, the appellants sought a departure from the established legal principle that costs should follow the event, specifically arguing for an indemnity certificate for the respondents' costs. The matter was heard by the Court of Appeal, which was required to determine whether the general rule on costs should be departed from in this instance and whether the respondents should receive an indemnity certificate.
The legal issues before the Court of Appeal centred on the principles governing the allocation of costs in appellate proceedings, particularly in cases where the appellant is not entirely victorious. The court had to assess the appropriateness of the general rule that costs follow the event, given the appellants' partial success, and decide whether an indemnity certificate was warranted. Furthermore, the court considered whether the costs orders made at first instance should be set aside and the costs matters remitted to the primary judge for a new determination.
The Court of Appeal held that while the appellants were not entirely successful, they were not entirely unsuccessful either. Therefore, the general rule that costs follow the event should not be departed from to such an extent as to award an indemnity certificate to the respondents. The court found it appropriate to order that the respondents pay half of the appellants’ costs of the appeal. Additionally, the court decided that the costs orders at first instance should be set aside, and the costs matters should be remitted to the primary judge for determination by reference to the reasons provided by the Court of Appeal. The order regarding the costs related to supplementary disclosure by the respondents remained in place.
In summary, the Court of Appeal ruled that the respondents would pay half of the appellants' costs of the appeal, set aside the primary judge's costs orders, and remitted the costs matters back to the primary judge for determination. The order concerning the costs of supplementary disclosure by the respondents remained unchanged.
Orders
Orders of the court
1. The respondents pay half of the appellants’ costs of the appeal;
2. The primary judge’s order that the plaintiffs pay the defendants’ costs on a standard basis of and incidental to the action (including reserved costs), except for so much of the trial taken up with the need to obtain supplementary disclosure by the defendants, be set aside, and that the costs of the proceeding incurred on and prior to 20 November 2009 be reserved to the primary judge for determination by reference to the reasons of this Court delivered on 11 December 2009 upon determination of the proceeding, or at such other time as the primary judge may order;
3. The Order that “The defendants are to pay the plaintiffs’ costs on the standard basis of so much of the trial as was taken up by the need to obtain supplementary disclosure by the defendants” will stand.