Chung v Dunn

[2013] QCA 12

SUPREME COURT OF QUEENSLAND

CITATION:

Chung v Dunn [2013] QCA 12

PARTIES:

HEAN KOK CHUNG (AKA JOHN CHUNG)
(appellant)
v
JAMES ROYSTON DUNN
(respondent)

FILE NO/S:

Appeal No 6778 of 2012
DC No 460 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

8 February 2013

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Holmes and White JJA and Boddice J
Judgment of the Court

ORDER:

The Court amends the orders made on 11 December 2012 so that order 2 reads:

“The orders made below be set aside, save the order as to costs (order 3) which is affirmed.”

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellant filed notice of appeal – where the Court gave judgment allowing the appeal – where the respondent seeks costs on the basis the appellant was largely unsuccessful in establishing the grounds of appeal – where the Court considered the appellant enjoyed some success – whether costs should be awarded

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellant filed notice of appeal – where the Court gave judgment allowing the appeal – where the respondent seeks an order confirming or restoring the indemnity costs order made at first instance – where the reduction in the amount to be paid by the appellant to the respondent was not so great as to deny the effectiveness of the respondent’s earlier offer to settle – whether the indemnity costs order at first instance should be confirmed or restored

Uniform Civil Procedure Rules 1999 (Qld), r 360

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:

Rostron Carlyle Solicitors for the appellant
Saunders Downing Hely for the respondent

1. THE COURT: On 11 December 2012, the Court gave judgment allowing the appellant’s appeal.  The respondent seeks his costs of that appeal, and of an earlier appeal which was struck out at the hearing of the appeal on 13 November 2012.  Those costs are sought on the basis the appellant was largely unsuccessful in establishing his grounds of appeal.

1. The appeal was allowed to the extent of reducing the sum the appellant was to pay the respondent, and by setting aside a declaration of a constructive trust.  Those orders did not amount to substantial success by the appellant.  The appellant is still required to pay the respondent $192,671.89, and the real property the subject of the proceeding is still charged in favour of the respondent to secure its payment. 

1. However, it cannot be said the appeal was without utility.  The appellant enjoyed some success.  In those circumstances, the Court makes no order as to the costs of the appeal.  As the earlier appeal, which was struck out, did not involve substantially different issues, the Court also makes no order as to the costs of that appeal.

1. The respondent also seeks an order confirming or restoring the indemnity costs order made in his favour at first instance. There is no good reason why the respondent should be denied that order. The reduction in the amount to be paid by the appellant to the respondent was not of such a magnitude as to deny the effectiveness of the respondent’s earlier offer to settle, which the primary judge found gave rise to an entitlement to an award of costs on an indemnity basis under Rule 360 of the Uniform Civil Procedure Rules 1999 (Qld).

1. The Court amends the orders made on 11 December 2012 so that order 2 reads:

“The orders made below be set aside, save the order as to costs (order 3) which is affirmed.”

The Court otherwise makes no order as to the costs of the appeal.