Australian Beverage Distributors v The Redrock Co - [2008] NSWCA 200

New South Wales

Court of Appeal

CITATION: Australian Beverage Distributors v The Redrock Co [2008] NSWCA 200

HEARING DATE(S): 6 August 2008

JUDGMENT DATE:
6 August 2008

JUDGMENT OF: Allsop P at 1, 33, 38; Campbell JA at 2

EX TEMPORE JUDGMENT DATE: 6 August 2008

DECISION: Application for leave to appeal dismissed with costs.

CATCHWORDS: PRACTICE AND PROCEDURE - application for leave to appeal from costs judgments - whether reasons given for departure from principle that costs follow event - whether applicant heard - relevance of r 36.11 Uniform Civil Procedure Rules 2005 - whether error of law or questions of fact not warranting re-examination by grant of leave - whether inconsistency between principal judgment and findings on application for costs - where questions of issue estoppel may be raised

LEGISLATION CITED: Civil Procedure Act 2005
Conveyancing Act 1919
Supreme Court Act 1970
Uniform Civil Procedure Rules

CASES CITED: Australian Beverage Distributors Pty Ltd v The Redrock Co Pty Ltd [2007] NSWSC 966; (2007) 213 FLR 450
Australian Beverage Distributors v The Redrock Co [2008] NSWSC 3; (2008) 26 ACLC 74
Australian Beverage Distributors v The Redrock Co [2008] NSWSC 114

PARTIES: Australian Beverage Distributors Pty Ltd (Applicant)
The Redrock Co Pty Ltd (Respondent)

FILE NUMBER(S): CA 40078/08

COUNSEL: CR Newlinds SC; DA Allen (Applicant)
A Seward (Respondent)

SOLICITORS: Catalyst Legal, Newcastle (Applicant)
Kemp Strang, Sydney (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): 2039/07

LOWER COURT JUDICIAL OFFICER: White J; Austin J

LOWER COURT DATE OF DECISION: 31 August 2007; 21 February 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Australian Beverage Distributors Pty Ltd v The Redrock Co Pty Ltd [2007] NSWSC 966; Australian Beverage Distributors v The Redrock Co [2008] NSWSC 114

CA 40078/08

ALLSOP P
CAMPBELL JA
6 AUGUST 2008

AUSTRALIAN BEVERAGE DISTRIBUTORS PTY LIMITED v THE REDROCK CO PTY LIMITED

Judgment

1 ALLSOP P: I will ask Justice Campbell to deliver the first judgment.

2 CAMPBELL JA: This is an application for leave to appeal from two costs judgments. The applicant brought winding up proceedings against the respondent. Those proceedings were ultimately dismissed. The costs in question are the costs of two interlocutory applications. One of them is a decision that White J gave on 31 August 2007 called Australian Beverage Distributors Pty Ltd v The Redrock Co Pty Ltd [2007] NSWSC 966; (2007) 213 FLR 450. The other is a costs decision that Austin J gave on 21 February 2008. It was a separate decision to the decision by which he dismissed the proceedings and was the decision relating to the costs of the proceedings as a whole. That decision is Australian Beverage Distributors v The Redrock Co [2008] NSWSC 114.

3 The application before White J was an application by the respondent seeking summary disposal of the winding up proceedings on two grounds. One was that the applicant was not a creditor of the respondent, the second that the proceedings were an abuse…

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: [2008] NSWCA 200
Decision Date: 6 August 2008

CaseChat Overview and Summary

Australian Beverage Distributors (the applicant) sought leave to appeal from costs judgments made by the primary court against it in favour of The Redrock Co (the respondent). The dispute concerned the costs awarded following a principal judgment, with the applicant arguing that the primary court had erred in its decision regarding costs.

The central legal issues before the Court of Appeal were whether the primary court had provided sufficient reasons for departing from the general principle that costs follow the event, whether the applicant had been afforded a proper hearing on the costs application, and whether the Uniform Civil Procedure Rules 2005, specifically rule 36.11, had been correctly applied. The applicant also contended that there was an inconsistency between the principal judgment and the findings made on the application for costs, and raised questions of issue estoppel. The court was required to determine if these matters constituted an error of law or questions of fact that warranted the grant of leave to appeal.

The Court of Appeal considered the arguments presented and concluded that no error of law had been demonstrated. The court found that the reasons provided by the primary judge for the costs orders were adequate and that the applicant had been heard. Furthermore, the court determined that the issues raised by the applicant, including those relating to issue estoppel and the alleged inconsistency between judgments, did not meet the threshold for granting leave to appeal.

Consequently, the application for leave to appeal was dismissed, and the applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

Application for leave to appeal dismissed with costs.

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:	Australian Beverage Distributors v The Redrock Co [2008] NSWCA 200
HEARING DATE(S):	6 August 2008
JUDGMENT DATE:	6 August 2008
JUDGMENT OF:	Allsop P at 1, 33, 38; Campbell JA at 2
EX TEMPORE JUDGMENT DATE:	6 August 2008
DECISION:	Application for leave to appeal dismissed with costs.
CATCHWORDS:	PRACTICE AND PROCEDURE - application for leave to appeal from costs judgments - whether reasons given for departure from principle that costs follow event - whether applicant heard - relevance of r 36.11 Uniform Civil Procedure Rules 2005 - whether error of law or questions of fact not warranting re-examination by grant of leave - whether inconsistency between principal judgment and findings on application for costs - where questions of issue estoppel may be raised
LEGISLATION CITED:	Civil Procedure Act 2005 Conveyancing Act 1919 Supreme Court Act 1970 Uniform Civil Procedure Rules
CASES CITED:	Australian Beverage Distributors Pty Ltd v The Redrock Co Pty Ltd [2007] NSWSC 966; (2007) 213 FLR 450 Australian Beverage Distributors v The Redrock Co [2008] NSWSC 3; (2008) 26 ACLC 74 Australian Beverage Distributors v The Redrock Co [2008] NSWSC 114
PARTIES:	Australian Beverage Distributors Pty Ltd (Applicant) The Redrock Co Pty Ltd (Respondent)
FILE NUMBER(S):	CA 40078/08
COUNSEL:	CR Newlinds SC; DA Allen (Applicant) A Seward (Respondent)
SOLICITORS:	Catalyst Legal, Newcastle (Applicant) Kemp Strang, Sydney (Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	2039/07
LOWER COURT JUDICIAL OFFICER:	White J; Austin J
LOWER COURT DATE OF DECISION:	31 August 2007; 21 February 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Australian Beverage Distributors Pty Ltd v The Redrock Co Pty Ltd [2007] NSWSC 966; Australian Beverage Distributors v The Redrock Co [2008] NSWSC 114