Boylan v Gallagher - [2011] QCA 287

SUPREME COURT OF QUEENSLAND

CITATION:

Boylan v Gallagher [2011] QCA 287

PARTIES:

KYM BOYLAN
(appellant)
v
DONNA MARIE GALLAGHER
(respondent)

FILE NO/S:

Appeal No 4482 of 2011
SC No 7518 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Judgment delivered 16 September 2011
Further Orders delivered 14 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Fraser and Chesterman JJA and Philippides J
Judgment of the Court

FURTHER ORDERS:

1. The respondent is to pay the appellant’s costs of the proceedings in the trial division, excluding the costs of the trial, to be assessed on the standard basis.

2. Pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld), the respondent is granted an indemnity certificate in respect of the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellant succeeded on appeal on a point conceded at trial – where the Court granted the parties leave to make submissions as to the costs of the proceedings in the trial division – where the respondent submitted that she should only be required to pay the appellant’s costs of the counterclaim excluding the costs of an incidental to trial – where the appellant submitted that costs should follow the event – whether the appellant should be awarded her costs of the proceedings in the trial division

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the respondent applied for an indemnity certificate – where the point upon which the appellant succeeded involved only a question of law arising from uncontentious facts – where the point was conceded by the appellant at trial – whether an indemnity certificate should be granted

Appeal Costs Fund Act 1973 (Qld), s 15(1)

Boylan v Gallagher [2011] QCA 240, cited

COUNSEL:

No appearance by the appellant, the appellant’s submissions were heard on the papers
No appearance by the respondent, the respondent’s submissions were heard on the papers

SOLICITORS:

Reichman Lawyers for the appellant
Morgan Conley Lawyers for the respondent

THE COURT: On 16 September 2011 the Court allowed the appeal in this matter with costs, set aside the order in the respondent/plaintiff’s favour for recovery of a deposit she had paid under a put and call option deed with the appellant, and gave judgment for the appellant/defendant on her counterclaim for $2,100,000 as damages for the respondent’s breach of contract (formed upon the appellant’s exercise of the put option) in failing to complete the purchase of the appellant’s land.[1] Pursuant to the Court’s leave, the parties have now lodged written submissions as to the appropriate order about the costs of the proceedings in the trial division.
[1]Boylan v Gallagher [2011] QCA 240.

The respondent succeeded at trial on…

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.

Continue reading Boylan v Gallagher

Details

AGLC: Boylan v Gallagher [2011] QCA 287
Case: [2011] QCA 287
Decision Date: 16 September 2011

CaseChat Overview and Summary

The appeal before the court involved Boylan (the appellant) and Gallagher (the respondent). The case revolved around the costs incurred during the trial division and the subsequent appeal. The appellant had succeeded on appeal on a point that had been conceded at trial. The court was asked to decide on the costs of the proceedings in the trial division and whether an indemnity certificate should be granted under the Queensland Appeal Costs Fund.

The central legal issue was whether the appellant should be awarded her costs of the proceedings in the trial division, and if so, whether the respondent should be required to pay the appellant's costs of the counterclaim excluding the costs of an incidental to trial, or whether the costs should follow the event. Additionally, the court needed to determine whether an indemnity certificate should be granted to the respondent under the Queensland Appeal Costs Fund, given that the point upon which the appellant succeeded involved only a question of law arising from uncontentious facts.

In addressing the first issue, the court noted that the respondent had submitted that she should only be required to pay the appellant’s costs of the counterclaim excluding the costs of an incidental to trial. In contrast, the appellant argued that costs should follow the event. The court considered the principle that costs should follow the event and concluded that the appellant was entitled to her costs of the proceedings in the trial division. Regarding the indemnity certificate, the court found that the point of law upon which the appellant succeeded was not contentious and involved only a question of law. Consequently, the court granted the respondent an indemnity certificate under the Queensland Appeal Costs Fund.

The court ordered that the respondent should pay the appellant’s costs of the proceedings in the trial division, following the event. Furthermore, the court granted the respondent an indemnity certificate under the Queensland Appeal Costs Fund, thereby relieving her from liability for the appellant's costs of the appeal.

Orders