Bentleys (Sunshine Coast) Pty Ltd v Thomson - [2019] QCA 104

SUPREME COURT OF QUEENSLAND

CITATION:

Bentleys (Sunshine Coast) Pty Ltd & Ors v Thomson [2019] QCA 104

PARTIES:

BENTLEYS (SUNSHINE COAST) PTY LTD
ACN 010 527 876
(first appellant)
PETA GRENFELL
(second appellant)
ULRIKE BENDLE
(third appellant)
CHERYL BLINCO
(fourth appellant)
v
CAROLYN MARY THOMSON
(respondent)

FILE NO/S:

Appeal No 6309 of 2017
SC No 4288 of 2016
DC No 3868 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 26 May 2017 (Boddice J)

DELIVERED ON:

Judgment delivered 21 December 2018
Further Orders delivered 28 May 2019

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Fraser and Morrison JJA and Flanagan J

ORDERS:

1.   Set aside the order made in the Trial Division reserving the costs of the applications.

2.   Instead order that:

(a)   The costs of the application for a separate trial of the third party proceedings are reserved.

(b)   The defendant pay to the third parties 50 per cent of the third parties’ costs of the application filed on 11 May 2017.

(c)    The third parties pay to the defendant 50 per cent of the defendant’s costs of the application filed on 11 May 2017.

3.   Order that:

(a)   The respondent pay to the appellants 50 per cent of the appellants’ costs of the appeal, excluding costs incurred only in the appeal against the decision not to order a separate trial of the third party proceedings.

(b)   The appellants pay to the respondent 50 per cent of the respondent’s costs of the appeal, excluding costs incurred only in the appeal against the decision not to order a separate trial of the third party proceedings.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW THE EVENT – where the appellants succeeded in having the respondent’s pleading struck out with leave to re-plead – where the respondent succeeded in defeating the appellants’ attempt to have the whole of the claim struck out – whether costs should follow the event – whether costs should be awarded on an indemnity basis

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – where the respondent submitted that the Court found that the order under appeal had no basis in law – where the respondent submitted that she did not attempt to persuade the primary judge to make the order under appeal – whether an indemnity certificate ought to be granted to the respondent

Appeal Costs Fund Act 1973 (Qld), s 15

Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 90 ALJR 270; [2015] HCA 53, cited
Murdoch v Lake[2014] QCA 269, applied
Reihana v QCAT Clients Services Manager & Ors[2017] QCA 117, cited
Sochorova v Commonwealth of Australia[2012] QCA 152, cited

COUNSEL:

C Sweeney QC for the appellant
The respondent appeared on her own behalf

SOLICITORS:

HWL…

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: [2019] QCA 104
Decision Date: 21 December 2018

CaseChat Overview and Summary

Bentleys (Sunshine Coast) Pty Ltd, along with other appellants, brought a case against Thomson, who was the respondent. The dispute arose from the respondent's successful attempt to have the appellants' pleading struck out, with leave to re-plead, and her victory in preventing the appellants from having the entire claim struck out. The court was tasked with determining the appropriate allocation of costs between the parties, particularly whether costs should follow the event and if they should be awarded on an indemnity basis. Additionally, the court had to consider whether an indemnity certificate should be granted to the respondent under the Queensland Appeal Costs Fund.

The legal issues before the court involved the general rule that costs follow the event and the potential for awarding costs on an indemnity basis. The court also needed to decide whether the respondent's arguments for an indemnity certificate were valid, considering the primary judge's findings and the respondent's efforts in the proceedings. The court's reasoning focused on the balance of success between the parties and the fairness of cost allocation, particularly in light of the respondent's success in the appeal against the order not to have a separate trial of the third-party proceedings.

The court concluded that the costs of the application for a separate trial of the third-party proceedings should be reserved, and that the defendant should pay 50% of the third parties' costs of the application filed on 11 May 2017, while the third parties should pay 50% of the defendant's costs of the same application. Regarding the appeal, the court ordered that the respondent pay 50% of the appellants' costs, excluding those incurred solely in the appeal against the decision not to order a separate trial of the third-party proceedings. Conversely, the appellants were ordered to pay 50% of the respondent's costs of the appeal, also excluding those incurred in the same appeal. The court set aside the order reserving the costs of the applications and made specific orders for the distribution of costs among the parties.

The final orders included reserving the costs of the application for a separate trial of the third-party proceedings, directing the defendant to pay 50% of the third parties' costs of the application filed on 11 May 2017, and requiring the third parties to pay 50% of the defendant's costs of the same application. Furthermore, the court ordered the respondent to pay 50% of the appellants' costs of the appeal, excluding those related to the appeal against the decision not to order a separate trial of the third-party proceedings, while the appellants were to pay 50% of the respondent's costs of the appeal, excluding those related to the same appeal. This comprehensive cost allocation aimed to reflect the parties' respective successes and the fairness of cost distribution in the case.

Orders

Orders of the court

1. Set aside the order made in the Trial Division reserving the costs of the applications.

2. Instead order that:

(a) The costs of the application for a separate trial of the third party proceedings are reserved.

(b) The defendant pay to the third parties 50 per cent of the third parties’ costs of the application filed on 11 May 2017.

3. Order that:

(a) The respondent pay to the appellants 50 per cent of the appellants’ costs of the appeal, excluding costs incurred only in the appeal against the decision not to order a separate trial of the third party proceedings.

(b) The appellants pay to the respondent 50 per cent of the respondent’s costs of the appeal, excluding costs incurred only in the appeal against the decision not to order a separate trial of the third party proceedings.

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:	Bentleys (Sunshine Coast) Pty Ltd & Ors v Thomson [2019] QCA 104
PARTIES:	BENTLEYS (SUNSHINE COAST) PTY LTD ACN 010 527 876 (first appellant) PETA GRENFELL (second appellant) ULRIKE BENDLE (third appellant) CHERYL BLINCO (fourth appellant) v CAROLYN MARY THOMSON (respondent)
FILE NO/S:	Appeal No 6309 of 2017 SC No 4288 of 2016 DC No 3868 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Orders
ORIGINATING COURT:	Supreme Court at Brisbane – Unreported, 26 May 2017 (Boddice J)
DELIVERED ON:	Judgment delivered 21 December 2018 Further Orders delivered 28 May 2019
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Fraser and Morrison JJA and Flanagan J
ORDERS:	1. Set aside the order made in the Trial Division reserving the costs of the applications. 2. Instead order that: (a) The costs of the application for a separate trial of the third party proceedings are reserved. (b) The defendant pay to the third parties 50 per cent of the third parties’ costs of the application filed on 11 May 2017. (c) The third parties pay to the defendant 50 per cent of the defendant’s costs of the application filed on 11 May 2017. 3. Order that: (a) The respondent pay to the appellants 50 per cent of the appellants’ costs of the appeal, excluding costs incurred only in the appeal against the decision not to order a separate trial of the third party proceedings. (b) The appellants pay to the respondent 50 per cent of the respondent’s costs of the appeal, excluding costs incurred only in the appeal against the decision not to order a separate trial of the third party proceedings.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW THE EVENT – where the appellants succeeded in having the respondent’s pleading struck out with leave to re-plead – where the respondent succeeded in defeating the appellants’ attempt to have the whole of the claim struck out – whether costs should follow the event – whether costs should be awarded on an indemnity basis APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – where the respondent submitted that the Court found that the order under appeal had no basis in law – where the respondent submitted that she did not attempt to persuade the primary judge to make the order under appeal – whether an indemnity certificate ought to be granted to the respondent Appeal Costs Fund Act 1973 (Qld), s 15 Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 90 ALJR 270; [2015] HCA 53, cited Murdoch v Lake[2014] QCA 269, applied Reihana v QCAT Clients Services Manager & Ors[2017] QCA 117, cited Sochorova v Commonwealth of Australia[2012] QCA 152, cited
COUNSEL:	C Sweeney QC for the appellant The respondent appeared on her own behalf
SOLICITORS:	HWL…