Carter Capner Law v Clift - [2020] QCA 202

SUPREME COURT OF QUEENSLAND

CITATION:

Carter Capner Law v Clift & Ors [2020] QCA 202

PARTIES:

CARTER CAPNER LAW
ABN 65 600 423 881
(appellant)
v
SEAN CLIFT
(first respondent)
GARY ERWIN
(second respondent)
STEVEN PATTEN
(third respondent)
SUZANNE RUSSELL
(fourth respondent)
LANA SCHEUBER
(fifth respondent)

FILE NO/S:

Appeal No 4446 of 2019
SC No 8846 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

Supreme Court at Brisbane – [2019] QSC 78 (Bond J)

DELIVERED ON:

15 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Fraser and Philippides JJA and Crow J

ORDERS:

1.   The respondents pay the appellant’s costs of the issue in the appeal about the delivery of a report or an itemised bill of costs, including the appellant’s costs of its application to adduce evidence in the appeal.

2.   The appellant pay the respondents’ costs of the issue in the appeal about the validity of the costs agreements.

3.   If the parties are unable to agree about the appropriate orders relating to costs in the Trial Division (including as to the appropriateness of an amendment to the notice of appeal upon that topic), the parties have leave to lodge with the registry and serve within fourteen days of publication of these reasons written submissions upon that topic, such submissions not to exceed two A4 pages unless otherwise ordered by the Court, a judge of appeal or registrar.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – UNREASONABLE REFUSAL OF OFFER – where the appellant relies upon an offer to settle the proceedings in the Trial Division made in a letter sent after the application was argued but before judgment was given – whether the offer to settle the proceedings in the Trial Division should be taken into account in relation to the costs of the appeal – whether the offer should be regarded as influential in relation to the costs in the Trial Division

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – GENERALLY – where the primary judge made a declaration that costs agreements between the appellant and each respondent were void and an order requiring the appellant to deliver an itemised bill of costs to each respondent – where the appellant succeeded on appeal in relation to the bill of costs issue but not the costs agreement issue – where the appellant argues it should recover its costs relating to the bill of costs issue and the respondents should recover their costs relating to the costs agreement issue – where the respondents contend there should be no order as to costs on the bill of costs issue – whether the appellant should recover its costs on the bill of costs issue

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – APPEALS…

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 Carter Capner Law v Clift

Details

AGLC: Carter Capner Law v Clift [2020] QCA 202
Case: [2020] QCA 202
Decision Date: 15 September 2020

CaseChat Overview and Summary

The appeal concerns a dispute between Carter Capner Law, the appellant, and Clift, the respondent, regarding the costs of litigation. The matter was initially heard in the Trial Division, where a costs order was made. The appellant subsequently appealed this order, along with other decisions made by the primary judge. The central legal issues involved the consideration of an offer to settle the proceedings, the recovery of costs in relation to specific issues, and the appropriate costs orders in both the Trial Division and on appeal. The court had to determine whether an informal offer to settle made after the application was argued but before judgment was given should be considered in the costs assessment. Additionally, it needed to decide whether the appellant should recover its costs relating to the bill of costs issue and if the respondents should bear their costs relating to the costs agreement issue. The court also considered whether the appellant’s notice of appeal should be amended to include the costs order from the Trial Division and whether the appellant was entitled to its costs in relation to the bill of costs issue in the Trial Division.

The court found that the offer to settle made after the application was argued but before judgment was given should be taken into account in relation to the costs of the appeal, as it demonstrated the appellant's reasonable approach to resolving the matter. However, the offer was not deemed influential enough to alter the costs in the Trial Division. Regarding the costs orders, the court held that the appellant was entitled to recover its costs relating to the bill of costs issue, while the respondents should bear their costs relating to the costs agreement issue. The court also clarified that the appellant’s notice of appeal did not need to be amended to include the costs order from the Trial Division, as it was an integral part of the appeal. The court allowed the appeal in part, ordering that the respondents pay the appellant's costs of the issue in the appeal about the delivery of a report or an itemised bill of costs, and the appellant pay the respondents’ costs of the issue in the appeal about the validity of the costs agreements.

The final orders of the court were that the respondents are to pay the appellant’s costs of the appeal relating to the bill of costs issue, including the costs of the application to adduce evidence. Conversely, the appellant is to pay the respondents’ costs relating to the validity of the costs agreements. If the parties cannot agree on the appropriate orders for the costs in the Trial Division, they have leave to submit written arguments to the court within fourteen days of the publication of the reasons for judgment. These submissions should not exceed two A4 pages unless otherwise directed by the court, a judge of appeal, or a registrar.

Orders

Orders of the court

1. The respondents pay the appellant’s costs of the issue in the appeal about the delivery of a report or an itemised bill of costs, including the appellant’s costs of its application to adduce evidence in the appeal.

2. The appellant pay the respondents’ costs of the issue in the appeal about the validity of the costs agreements.

3. If the parties are unable to agree about the appropriate orders relating to costs in the Trial Division (including as to the appropriateness of an amendment to the notice of appeal upon that topic), the parties have leave to lodge with the registry and serve within fourteen days of publication of these reasons written submissions upon that topic, such submissions not to exceed two A4 pages unless otherwise ordered by the Court, a judge of appeal or registrar.

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:	Carter Capner Law v Clift & Ors [2020] QCA 202
PARTIES:	CARTER CAPNER LAW ABN 65 600 423 881 (appellant) v SEAN CLIFT (first respondent) GARY ERWIN (second respondent) STEVEN PATTEN (third respondent) SUZANNE RUSSELL (fourth respondent) LANA SCHEUBER (fifth respondent)
FILE NO/S:	Appeal No 4446 of 2019 SC No 8846 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Orders
ORIGINATING COURT:	Supreme Court at Brisbane – [2019] QSC 78 (Bond J)
DELIVERED ON:	15 September 2020
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Fraser and Philippides JJA and Crow J
ORDERS:	1. The respondents pay the appellant’s costs of the issue in the appeal about the delivery of a report or an itemised bill of costs, including the appellant’s costs of its application to adduce evidence in the appeal. 2. The appellant pay the respondents’ costs of the issue in the appeal about the validity of the costs agreements. 3. If the parties are unable to agree about the appropriate orders relating to costs in the Trial Division (including as to the appropriateness of an amendment to the notice of appeal upon that topic), the parties have leave to lodge with the registry and serve within fourteen days of publication of these reasons written submissions upon that topic, such submissions not to exceed two A4 pages unless otherwise ordered by the Court, a judge of appeal or registrar.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – UNREASONABLE REFUSAL OF OFFER – where the appellant relies upon an offer to settle the proceedings in the Trial Division made in a letter sent after the application was argued but before judgment was given – whether the offer to settle the proceedings in the Trial Division should be taken into account in relation to the costs of the appeal – whether the offer should be regarded as influential in relation to the costs in the Trial Division PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – GENERALLY – where the primary judge made a declaration that costs agreements between the appellant and each respondent were void and an order requiring the appellant to deliver an itemised bill of costs to each respondent – where the appellant succeeded on appeal in relation to the bill of costs issue but not the costs agreement issue – where the appellant argues it should recover its costs relating to the bill of costs issue and the respondents should recover their costs relating to the costs agreement issue – where the respondents contend there should be no order as to costs on the bill of costs issue – whether the appellant should recover its costs on the bill of costs issue PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – APPEALS…