Challen v Golder Associates Pty Ltd - [2012] QCA 339

SUPREME COURT OF QUEENSLAND

CITATION:

Challen v Golder Associates Pty Ltd [2012] QCA 339

PARTIES:

CHALLEN, PETER LESLIE TRADING AS HAWTHORN CUPPAIDGE & BADGERY
ABN 96 335 661 027
(appellant)
v
GOLDER ASSOCIATES PTY LTD
ABN 64 006 107 857
(respondent)

FILE NO:

Appeal No 1982 of 2012
DC No 4082 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Margaret McMurdo P, Fraser JA and Mullins J
Judgment of the Court

ORDER:

The appellant is to pay 50 per cent of the respondent’s costs of the application for leave to appeal and the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellant filed notice of appeal – where the appellant required leave to appeal from the court under s 118(3) of the District Court of Queensland Act 1967 (Qld) – where the appellant required an extension of time for filing the application for leave to appeal – where leave to appeal was granted – where the appellant was partially successful on appeal – whether costs should be awarded and on what basis

District Court of Queensland Act 1967 (Qld), s 118(3)
Legal Profession Act 2007 (Qld), s 333

Challen v Golder Associates Pty Ltd [2012] QCA 307, related

COUNSEL:

P L Challen (sol) for the appellant
M S Trim for the respondent

SOLICITORS:

Hawthorn Cuppaidge & Badgery for the appellant
DGT Costs Lawyers for the respondent

THE COURT: The parties were given leave to make submissions on the costs of the application for leave to appeal and the appeal when the court granted leave to appeal and allowed the appeal to the extent of setting aside the order made by the primary judge for the itemisation of the 27 bills rendered by the appellant for legal services: Challen v Golder Associates Pty Ltd [2012] QCA 307 (the appeal judgment).

The appellant had filed a notice of appeal against the orders of the primary judge, when leave to appeal was required from the court under s 118(3) of the District Court of Queensland Act 1967. The appellant had incorporated in the orders sought in the notice of the appeal that, to the extent necessary, the appellant be granted leave to bring the appeal, but that did not fulfil the requirements for making an application for leave to appeal. The respondent took the point in its outline filed on 27 April 2012 that leave to appeal was required and opposed the grant of leave. On 13 July 2012 the appellant finally filed the requisite application for leave to appeal and the same application also sought the required extension of time until 13 July 2012 to file the application for leave to appeal. The application also sought that the costs of the application be costs in the appeal. At the commencement…

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: [2012] QCA 339
Decision Date: 4 December 2012

CaseChat Overview and Summary

The case of Challen v Golder Associates Pty Ltd involved the appellant, Challen, who filed a notice of appeal against a decision of the District Court of Queensland. The nature of the dispute pertained to the requirement for leave to appeal and the subsequent costs associated with the appeal process. The court was tasked with determining whether costs should be awarded and, if so, the basis on which they should be awarded.

The primary legal issues before the court were whether Challen should be granted leave to appeal, the appropriate timeframes for filing the application for leave to appeal, and the allocation of costs between the parties. Specifically, the court needed to consider whether the appellant was entitled to an extension of time for filing the application for leave to appeal and the circumstances under which costs should be awarded in such cases.

The court granted Challen leave to appeal but held that Challen was only partially successful. In determining the costs, the court considered the statutory provisions under the District Court of Queensland Act 1967 (Qld) and the relevant case law. The court concluded that Challen should bear 50 per cent of the respondent's costs for the application for leave to appeal and the appeal itself. The decision was based on the partial success of the appeal and the court's discretion in allocating costs under the relevant legislation.

No further orders were made beyond the allocation of costs as outlined in the court's judgment.

Orders

Orders of the court

The appellant is to pay 50 per cent of the respondent’s costs of the application for leave to appeal and the appeal.

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:	Challen v Golder Associates Pty Ltd [2012] QCA 339
PARTIES:	CHALLEN, PETER LESLIE TRADING AS HAWTHORN CUPPAIDGE & BADGERY ABN 96 335 661 027 (appellant) v GOLDER ASSOCIATES PTY LTD ABN 64 006 107 857 (respondent)
FILE NO:	Appeal No 1982 of 2012 DC No 4082 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Order
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	4 December 2012
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Margaret McMurdo P, Fraser JA and Mullins J Judgment of the Court
ORDER:	The appellant is to pay 50 per cent of the respondent’s costs of the application for leave to appeal and the appeal.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellant filed notice of appeal – where the appellant required leave to appeal from the court under s 118(3) of the District Court of Queensland Act 1967 (Qld) – where the appellant required an extension of time for filing the application for leave to appeal – where leave to appeal was granted – where the appellant was partially successful on appeal – whether costs should be awarded and on what basis District Court of Queensland Act 1967 (Qld), s 118(3) Legal Profession Act 2007 (Qld), s 333 Challen v Golder Associates Pty Ltd [2012] QCA 307, related
COUNSEL:	P L Challen (sol) for the appellant M S Trim for the respondent
SOLICITORS:	Hawthorn Cuppaidge & Badgery for the appellant DGT Costs Lawyers for the respondent