Cullinan v McCahon

Case [2014] QDC 120


DISTRICT COURT OF QUEENSLAND

CITATION:

Cullinan v McCahon [2014] QDC 120

PARTIES:

MARK WILLIAM CULLINAN
(appellant/applicant)

v

CHRISTOPHER McCAHON
(respondent)

FILE NO/S:

2393/13

DIVISION:

Appellate

PROCEEDING:

Appeal and costs ruling under ss 222, 158B and 232A of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrates Court at Holland Park

DELIVERED ON:

29 May 2014

DELIVERED AT:

Brisbane

HEARING DATE:

24 April 2014

JUDGE:

Farr SC DCJ

ORDER:

1.   The appeal is allowed.

2.   The complaint laid by the respondent to this appeal is dismissed.

3.   The appellant’s application seeking the court to exercise its discretion under sections 158B and 232A of the Justices Act 1886 is dismissed.

4.   The respondent pay the appellant’s costs of the hearing below pursuant to sections 158 and 158B(1) of the Justices Act 1886 fixed in the sum of $3,375.00.

5.   The respondent pay the appellant’s costs of the appeal pursuant to sections 226 and 232A(1) of the Justices Act 1886 fixed in the sum of $1,800.00.

CATCHWORDS:

Justices Act 1886 , s 226, s 232A — Justices Regulation 2004 Schedule 2 —costs payable to successful appellant- where costs calculated on schedule scale - where the appellant applied for the court to exercise its discretion under s158B  - where appeal did not involve ‘special difficulty, complexity or importance’ — fixed schedule scale amount to remain.

COUNSEL:

A Abaza, solicitor, for appellant

D O’Brien QC for respondent

SOLICITORS:

Andrew P Abaza, solicitor, for appellant

Brisbane City Legal Practice for respondent

  1. The appellant has appealed against the dismissal by a Magistrate on 7 June 2013 of the appellant’s application that a complaint laid under the Justices Act 1886 (“Justices Act”) for contravention of s 83(1)(b) of the Building Act 1975 be dismissed with costs. The appellant lost on all grounds before the learned Magistrate.

  1. The appellant contends that the learned Magistrate erred in rejecting the various grounds for dismissal of the complaint. 

  1. On 12 November 2013 the respondent filed a submission in this court stating that it agreed to this court making the following orders:

(a)        The appeal be allowed;

(b)        The complaint laid by the respondent the subject of this appeal be dismissed;

(c) The respondent pay the appellant’s costs of the hearing below pursuant to ss 158 and 158B(1) of the Justices Act fixed in the sum of $3,375.00; and

(d) The respondent pay the appellant’s costs of the appeal pursuant to ss 226 and 232A(1) of the Justices Act fixed in the sum of $1,800.00.

  1. Hence, the respondent, having conceded that the appeal should be allowed, has agreed to pay the appellant’s costs in the amounts allowed under the Justices Act and the Justices Regulations 2004 (‘Justices Regulations’). The costs particularised above were calculated on the basis of allowing the maximum claimable under the scale items detailed in items 1 and 4 of Part 1, Schedule 2 of the Justices Regulations.

  1. The appellant now applies to the court to exercise its discretion under ss 158B and 232A of the Justices…

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AGLC
Cullinan v McCahon [2014] QDC 120
Case
[2014] QDC 120
Decision Date

CaseChat Overview and Summary

Cullinan v McCahon was a legal dispute between two parties that was heard by the court. The case involved a complaint laid by the respondent, McCahon, against the appellant, Cullinan, which was subsequently appealed by Cullinan. The appeal was based on the determination of costs payable to the appellant under the Justices Act 1886 and the Justices Regulation 2004. The court was required to decide whether the appellant was entitled to additional costs beyond those calculated on the schedule scale, and whether the appeal involved special difficulty, complexity, or importance.

The legal issues before the court were whether the appeal involved any special difficulty, complexity, or importance that would warrant the court exercising its discretion under section 158B of the Justices Act 1886 to award costs to the appellant. The court also had to consider whether the fixed schedule scale amount should remain or if there were grounds to depart from it. The appellant had applied for the court to exercise its discretion to award additional costs, but the court found that the appeal did not involve any special difficulty, complexity, or importance.

The court dismissed the appellant’s application for the court to exercise its discretion under sections 158B and 232A of the Justices Act 1886. It was determined that the appeal did not involve any special difficulty, complexity, or importance that would warrant a departure from the fixed schedule scale amount. Therefore, the costs payable to the appellant were to be calculated according to the schedule scale, and no additional costs were to be awarded. The court allowed the appeal, dismissed the complaint laid by the respondent, and dismissed the appellant’s application seeking the court to exercise its discretion under sections 158B and 232A of the Justices Act 1886. The court also ordered that the respondent pay the appellant’s costs of the hearing below and the appeal.

Orders

Orders of the court

1. The appeal is allowed.

2. The complaint laid by the respondent to this appeal is dismissed.

3. The appellant’s application seeking the court to exercise its discretion under sections 158B and 232A of the Justices Act 1886 is dismissed.

4. The respondent pay the appellant’s costs of the hearing below pursuant to sections 158 and 158B(1) of the Justices Act 1886 fixed in the sum of $3,375.00.

5. The respondent pay the appellant’s costs of the appeal pursuant to sections 226 and 232A(1) of the Justices Act 1886 fixed in the sum of $1,800.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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