Callide Power Management P/L v Callide Coalfields (Sales) P/L

[2008] QCA 216

SUPREME COURT OF QUEENSLAND

CITATION:

Callide Power Management P/L v Callide Coalfields (Sales) P/L [2008] QCA 216

PARTIES:

CALLIDE POWER MANAGEMENT PTY. LIMITED
ACN 082 468 700
(applicant/respondent)
v
CALLIDE COALFIELDS (SALES) PTY LTD
ACN 082 543 986
(respondent/appellant)

FILE NO/S:

Appeal No 500 of 2008
SC No 8437 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Judgment delivered 11 July 2008
Further Order delivered 1 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Keane and Muir JJA and Mackenzie AJA
Judgment of the Court

FURTHER ORDER:

Respondent's application for indemnity costs dismissed1.   

Appellant to pay the respondent's costs of and incidental to the appeal to be assessed on the standard basis2.   

CATCHWORDS:

PROCEDURE – COSTS – RECOVERY OF COSTS – where the appellant rejected an earlier offer by the respondent to withdraw its appeal on the ground that each party bear its own costs as so far incurred – where the appellant was ultimately unsuccessful on appeal – whether the appellant acted unreasonably in pursuing the appeal – whether an order for indemnity costs in favour of the respondent ought to be made

Greenhalgh v Bacas Training Limited & Ors[2007] QCA 365, distinguished

COUNSEL:

R W Gotterson QC for the appellant
D B Fraser QC, with P W Telford, for the respondent

SOLICITORS:

Minter Ellison for the appellant
BCI Duells Lawyers for the respondent

1. THE COURT:  On 11 July 2008 the substantive appeal in this matter was dismissed.  On that date the respondent was given leave, pursuant to Practice Direction 1 of 2005, to make submissions in relation to the orders for costs which should be made.

1. The respondent submits that it should recover its costs of the appeal on the indemnity basis having regard to its written offer to the appellant dated 20 March 2008 whereby it invited the appellant to withdraw its appeal on the footing that the respondent would bear its own costs of the appeal so far incurred.  In this regard, the respondent relies upon the decision of this Court in Greenhalgh v Bacas Training Limited & Ors.[1] 

   [1][2007] QCA 365.

1. The appellant resists the respondent's application contending that the appellant did not act so unreasonably or imprudently in declining the respondent's offer as to warrant an order for costs on the indemnity basis.  The appellant argues that Greenhalgh v Bacas Training Limited & Ors is distinguishable in that the unsuccessful party in that case was an applicant for leave to appeal and its refusal of an offer to withdraw its application free of any liability for costs was plainly unreasonable in the light of its relatively precarious position as a mere applicant for leave to appeal.

1. We consider that the appellant's submission should be accepted.  In this case the appeal concerned the proper interpretation of a lengthy and complex commercial document.  The position advanced by the appellant on the appeal was not so bereft of prospects of success that it can be said that the appellant acted unreasonably in pursuing the appeal which was available to it as of right.

1. Accordingly, we would reject the respondent's application.

1. We order that the appellant pay the respondent's costs of and incidental to the appeal to be assessed on the standard basis.