Campbell v Turner (No 2) - [2008] QCA 189

SUPREME COURT OF QUEENSLAND

CITATION:

Campbell v Turner & Ors (No 2) [2008] QCA 189

PARTIES:

WAYNE ALEXANDER CAMPBELL and MARY-ANNE MONICA CAMPBELL
(plaintiffs/appellants)
v
LIONEL JOSEPH JAMES TURNER and ELSIE EDITH TURNER
(first defendants/first respondents)
BOHLE GRAZING PTY LTD ACN 010 552 762
(second defendant/second respondent)
HERBERT SAMUEL TURNER
(third defendant/third respondent)
LYNDEL ISABEL OWENS
(fourth defendant/fourth respondent)

FILE NO/S:

Appeal No 11272 of 2007
SC No 97 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal
Miscellaneous Application - Civil

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

de Jersey CJ, Fraser JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Vary order no. 2 made in this Court on 30 May 2008 so that it provides:1.

“2.    In lieu thereof order that:
      (a) the first defendants pay the
                plaintiffs $136,988.21;
      (b) the fourth defendant pay the
               plaintiffs $102,971.50;
      (c) the claim against the second and
              third defendants be dismissed.”

In lieu of the orders for costs made by the trial judge, order that:2.

The first and fourth defendants pay the plaintiffs' costs of and incidental to the proceedings to be assessed on the standard basis on the applicable District Court scale. (a)

The plaintiffs pay the second and third defendants' costs of and incidental to the proceedings to be assessed on the standard basis on the Supreme Court scale (each of those defendants being entitled to one quarter of the whole costs of defending the proceeding on that scale).(b)

The first and fourth respondents pay the appellants’ costs of the appeal to be assessed on the standard basis on the Supreme Court scale.3.

The appellants pay the second and third respondents' costs of the appeal to be assessed on the standard basis on the Supreme Court scale (each of those respondents being entitled to one‑quarter of the whole costs of defending the appeal on the Supreme Court scale).4.

CATCHWORDS:

PROCEDURE – COSTS – JURISDICTION – GENERALLY

INTEREST – WHERE EQUITABLE RELIEF OR FIDUCIARY RELATIONSHIP – where the appellant was awarded compound interest – where the award of compound interest constituted an equitable claim – whether the award of compound interest should be included in determining the applicable costs scale

PROCEDURE – COSTS – SCALE OF COSTS – SCALE APPLICABLE – where the plaintiffs brought proceedings seeking relief based on various grounds – where the defendants contended that had the plaintiffs simply brought proceedings in equity for compensation the proceeding would not have been so complex – where the plaintiffs’ successful equitable claim involved quite an extensive review of factual and legal questions – whether the proceedings ought to have been brought in the Magistrates Court or District Court – whether costs should be awarded on the applicable Magistrates Court or District Court scale

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT –…

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 Campbell v Turner (No 2)

Details

AGLC: Campbell v Turner (No 2) [2008] QCA 189
Case: [2008] QCA 189
Decision Date: 18 July 2008

CaseChat Overview and Summary

The case of Campbell v Turner (No 2) involved the plaintiffs seeking to have an order varied regarding the payment of compound interest. The first and fourth defendants were ordered to pay the plaintiffs specific sums, while the claim against the second and third defendants was dismissed. The central issue was the determination of costs and the applicable scale for assessing those costs, considering the nature of the equitable claims and the complexity of the proceedings.

The court had to decide whether the award of compound interest, which constituted an equitable claim, should be included in determining the applicable costs scale. The court also needed to determine if the proceedings should have been brought in the Magistrates Court or District Court and whether costs should be awarded on the applicable Magistrates Court or District Court scale. Furthermore, the court examined whether the plaintiffs' substantial success on their appeal should be reflected in the costs order, despite their failure on other issues.

The court held that the award of compound interest should be considered an equitable claim, and thus, the applicable costs scale should reflect this. The court found that the proceedings were sufficiently complex to warrant being brought in the District Court. Regarding the costs of the appeal, the court ruled that the plaintiffs' substantial success should be reflected in the costs order, despite their failure on other issues, as their success required reference to much of the legal and factual substratum that underlay the unsuccessful claims.

The court varied the previous order to reflect the payment amounts and dismissed the claims against the second and third defendants. The first and fourth defendants were ordered to pay the plaintiffs' costs of and incidental to the proceedings on the District Court scale, while the plaintiffs were ordered to pay the second and third defendants' costs on the Supreme Court scale. The first and fourth defendants were also ordered to pay the appellants' costs of the appeal on the Supreme Court scale, while the appellants were ordered to pay the second and third respondents' costs of the appeal on the Supreme Court scale.

Orders

Orders of the court

Vary order no. 2 made in this Court on 30 May 2008 so that it provides:1.

“2. In lieu thereof order that:

(a) the first defendants pay the

plaintiffs $136,988.21;

(b) the fourth defendant pay the

plaintiffs $102,971.50;

third defendants be dismissed.”

In lieu of the orders for costs made by the trial judge, order that:2.

The first and fourth defendants pay the plaintiffs' costs of and incidental to the proceedings to be assessed on the standard basis on the applicable District Court scale. (a)

The plaintiffs pay the second and third defendants' costs of and incidental to the proceedings to be assessed on the standard basis on the Supreme Court scale (each of those defendants being entitled to one quarter of the whole costs of defending the proceeding on that scale).(b)

The first and fourth respondents pay the appellants’ costs of the appeal to be assessed on the standard basis on the Supreme Court scale.3.

The appellants pay the second and third respondents' costs of the appeal to be assessed on the standard basis on the Supreme Court scale (each of those respondents being entitled to one‑quarter of the whole costs of defending the appeal on the Supreme Court scale).4.

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:	Campbell v Turner & Ors (No 2) [2008] QCA 189
PARTIES:	WAYNE ALEXANDER CAMPBELL and MARY-ANNE MONICA CAMPBELL (plaintiffs/appellants) v LIONEL JOSEPH JAMES TURNER and ELSIE EDITH TURNER (first defendants/first respondents) BOHLE GRAZING PTY LTD ACN 010 552 762 (second defendant/second respondent) HERBERT SAMUEL TURNER (third defendant/third respondent) LYNDEL ISABEL OWENS (fourth defendant/fourth respondent)
FILE NO/S:	Appeal No 11272 of 2007 SC No 97 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal Miscellaneous Application - Civil
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 July 2008
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	de Jersey CJ, Fraser JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Vary order no. 2 made in this Court on 30 May 2008 so that it provides:1. “2. In lieu thereof order that: (a) the first defendants pay the plaintiffs $136,988.21; (b) the fourth defendant pay the plaintiffs $102,971.50; (c) the claim against the second and third defendants be dismissed.” In lieu of the orders for costs made by the trial judge, order that:2. The first and fourth defendants pay the plaintiffs' costs of and incidental to the proceedings to be assessed on the standard basis on the applicable District Court scale. (a) The plaintiffs pay the second and third defendants' costs of and incidental to the proceedings to be assessed on the standard basis on the Supreme Court scale (each of those defendants being entitled to one quarter of the whole costs of defending the proceeding on that scale).(b) The first and fourth respondents pay the appellants’ costs of the appeal to be assessed on the standard basis on the Supreme Court scale.3. The appellants pay the second and third respondents' costs of the appeal to be assessed on the standard basis on the Supreme Court scale (each of those respondents being entitled to one‑quarter of the whole costs of defending the appeal on the Supreme Court scale).4.
CATCHWORDS:	PROCEDURE – COSTS – JURISDICTION – GENERALLY INTEREST – WHERE EQUITABLE RELIEF OR FIDUCIARY RELATIONSHIP – where the appellant was awarded compound interest – where the award of compound interest constituted an equitable claim – whether the award of compound interest should be included in determining the applicable costs scale PROCEDURE – COSTS – SCALE OF COSTS – SCALE APPLICABLE – where the plaintiffs brought proceedings seeking relief based on various grounds – where the defendants contended that had the plaintiffs simply brought proceedings in equity for compensation the proceeding would not have been so complex – where the plaintiffs’ successful equitable claim involved quite an extensive review of factual and legal questions – whether the proceedings ought to have been brought in the Magistrates Court or District Court – whether costs should be awarded on the applicable Magistrates Court or District Court scale PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT –…