Cullinan v McCahon

[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…