Coles Group Limited v Costin - [2015] QCA 165

SUPREME COURT OF QUEENSLAND

CITATION:

Coles Group Limited v Costin [2015] QCA 165

PARTIES:

COLES GROUP LIMITED
ACN 004 089 936

(appellant)v
DEBORAH ANNE COSTIN
(respondent)

FILE NO/S:

Appeal No 9350 of 2014
DC No 1886 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders
Miscellaneous Application – Civil

ORIGINATING COURT:

District Court at Brisbane – Unreported, 5 September 2014

DELIVERED ON:

4 September 2015

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Holmes and Gotterson JJA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The order for costs made on 5 September 2014 be set aside and it be ordered instead that, subject to the costs order of 30 May 2014, the costs of and incidental to the application be costs in the proceeding for damages in the District Court of Queensland.

CATCHWORDS:

LIMITATION OF ACTIONS – GENERAL MATTERS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – where grant of an extension of time in which to bring a personal injury claim – where the order was upheld on the basis that the respondent would undertake not to litigate an allegation found on appeal to prejudice the appellant – whether the undertaking proffered by the respondent was adequate

PROCEDURE – COSTS – RECOVERY OF COSTS – where appellant had limited but significant success in the appeal –where respondent was successful at first instance in obtaining an order for an extension of time – where that order was maintained on appeal although on a different basis than at first instance – what orders as to costs should be made

Limitation of Actions Act 1974 (Qld), s 31

Coles Group Limited v Costin[2015] QCA 140, related
Grove v Bestobell Industries Pty Ltd [1980] Qd R 12, cited

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:

Dibbs Barker for the appellant
Shine Lawyers for the respondent

HOLMES JA: I agree with the reasons of Applegarth J and the orders he proposes.
GOTTERSON JA: I agree with the orders proposed by Applegarth J and with the reasons given by his Honour.
APPLEGARTH J: On 31 July 2015 this Court ordered that:
1.The respondent’s application filed on 16 April 2015 to adduce further evidence be granted.
2.The application for an extension of time in which to bring an application for leave to appeal be granted.
3.The application for leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) be granted.
4.The appeal be allowed.
5.The parties file and serve within 14 days any undertaking by the respondent and submissions on further orders, including costs orders.

The undertaking

Ms Costin proffers the following undertaking:
“The Respondent undertakes to the Court not to litigate (claim or plead) any allegation against…

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: [2015] QCA 165
Decision Date: 4 September 2015

CaseChat Overview and Summary

The case of Coles Group Limited v Costin concerns a dispute involving a personal injury claim where the primary issue was whether an extension of time to bring the claim should be granted. The matter was heard by the Supreme Court of Queensland and later appealed to the Court of Appeal. The appeal raised two significant issues: first, whether the extension of time granted to the respondent should be upheld; and second, the appropriate costs orders to be made given the partial success of both parties.

The court needed to determine whether the conditions set forth for the extension of the limitation period were met, specifically focusing on the undertaking given by the respondent. The appeal court upheld the extension but on different grounds than those initially accepted by the trial judge. The court held that the respondent's undertaking to not litigate a specific allegation was sufficient to justify the extension, despite the allegation being found prejudicial on appeal. This ruling was significant as it allowed the respondent to proceed with the claim despite the limitation period having expired.

In relation to costs, the court considered the mixed outcomes of the appeal and the original proceedings. While the respondent was successful in obtaining the extension of time initially and maintaining it on appeal, the appellant had significant but limited success in the appeal. The court ultimately decided to set aside the previous costs order and ordered that the costs of the application be treated as part of the costs in the proceeding for damages in the District Court of Queensland. This decision reflected the partial success of both parties and the complex nature of the litigation.

Orders

Orders of the court

The order for costs made on 5 September 2014 be set aside and it be ordered instead that, subject to the costs order of 30 May 2014, the costs of and incidental to the application be costs in the proceeding for damages in the District Court of Queensland.

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:	Coles Group Limited v Costin [2015] QCA 165
PARTIES:	COLES GROUP LIMITED ACN 004 089 936 (appellant)v DEBORAH ANNE COSTIN (respondent)
FILE NO/S:	Appeal No 9350 of 2014 DC No 1886 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Orders Miscellaneous Application – Civil
ORIGINATING COURT:	District Court at Brisbane – Unreported, 5 September 2014
DELIVERED ON:	4 September 2015
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Holmes and Gotterson JJA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The order for costs made on 5 September 2014 be set aside and it be ordered instead that, subject to the costs order of 30 May 2014, the costs of and incidental to the application be costs in the proceeding for damages in the District Court of Queensland.
CATCHWORDS:	LIMITATION OF ACTIONS – GENERAL MATTERS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – where grant of an extension of time in which to bring a personal injury claim – where the order was upheld on the basis that the respondent would undertake not to litigate an allegation found on appeal to prejudice the appellant – whether the undertaking proffered by the respondent was adequate PROCEDURE – COSTS – RECOVERY OF COSTS – where appellant had limited but significant success in the appeal –where respondent was successful at first instance in obtaining an order for an extension of time – where that order was maintained on appeal although on a different basis than at first instance – what orders as to costs should be made Limitation of Actions Act 1974 (Qld), s 31 Coles Group Limited v Costin[2015] QCA 140, related Grove v Bestobell Industries Pty Ltd [1980] Qd R 12, cited
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:	Dibbs Barker for the appellant Shine Lawyers for the respondent