DISTRICT COURT OF QUEENSLAND
CITATION:
Cullinan v McCahon (No. 2) [2014] QDC 170
PARTIES:
MARK WILLIAM CULLINAN
(appellant/applicant)v
CHRISTOPER McCAHON
(respondent)FILE NO:
2393/13
DIVISION:
Appellate
PROCEEDING:
Application for leave to appeal; costs ruling
ORIGINATING COURT:
Magistrates Court at Holland Park
DELIVERED ON:
15.08.2014
DELIVERED AT:
Brisbane
HEARING DATE:
On the papers
JUDGE:
Judge Farr, SC
ORDER:
Orders
1. The appellant is ordered to pay the respondent’s costs of and incidental to the appellant’s application for a higher award of costs pursuant to ss 158B and 232A of the Justices Act 1886 in the amount of $1,500.00.
2. The appellant’s application for leave to appeal orders numbered 3, 4 and 5 of the judgment delivered on 29 May 2014 in the matter of Cullinan v McCahon [2014] QDC 120 is dismissed.
3. The appellant is ordered to pay the respondent’s costs of and incidental to the appellant’s application for leave to appeal orders numbered 3, 4 and 5 of the judgment delivered on 29 May 2014 in the matter of Cullinan v McCahon [2014] QDC 120 in the amount of $1,500.00.
CATCHWORDS:
COSTS - where the appellant’s case was unsuccessful for a higher award for costs - where the respondent sought costs of the failed application – whether costs should follow the event – where uplift of 20% is sought pursuant to Section 4, Part 1 of the Schedule 2 of Justices Regulations 2004.
APPLICATION FOR LEAVE - where the appellant sought leave to appeal the decision dismissing the appellant’s application for a higher award of costs – where an applicant must demonstrate that an error has occurred – where applicant failed to demonstrate that error has occurred.COSTS – where respondent sought costs of failed application for leave- where Part 2 of Schedule 2 of Justices Regulation 2004 has application- where an uplift of 20% is sought pursuant to Section 4, Part 1 of Schedule 2 of the Justices Regulations 2004.
COUNSEL:
D O’Brien QC for the respondent
SOLICITORS:
Andrew P Abaza, solicitor for the appellant
Brisbane City Legal Practice for the respondent
On 29 May 2014 judgment was delivered dismissing the appellant’s application pursuant to ss 158B and 232A(2) of the Justices Act 1886 (Justices Act) for a higher amount for costs to be awarded on the basis that such higher amount was just and reasonable having regard to the special difficulty, complexity or importance of the case.[1]
[1]Cullinan v McCahon [2014] QDC 120 at page 29.
The respondent now seeks an order for costs relating to that application. In that regard the respondent has submitted that there is no reason why costs should not follow the event.
The appellant has submitted that costs should not be ordered. The bases for his opposition to such an order are:
(a) that the original prosecution was nothing more than a speculative excursion on the part of the respondent;
(b) that the appellant’s application for higher costs was not unreasonable and was fairly arguable in all the…
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- AGLC
- Cullinan v McCahon (No. 2) [2014] QDC 170
- Case
- [2014] QDC 170
- Decision Date
CaseChat Overview and Summary
The court held that the appellant failed to demonstrate that an error occurred in the earlier decision, hence the application for leave to appeal was dismissed. Regarding the costs, the court applied Part 2 of Schedule 2 of the Justices Regulations 2004 and granted the respondent's request for a 20% uplift on the costs. The court ordered the appellant to pay the respondent’s costs of and incidental to the appellant’s application for a higher award of costs in the amount of $1,500.00. Additionally, the court ruled that the appellant must pay the respondent’s costs of and incidental to the appellant’s application for leave to appeal in the same amount.
The court's reasoning was based on the principles that the party who loses in a legal proceeding generally bears the costs of that proceeding, and the application for leave to appeal was dismissed as the appellant failed to establish the requisite error. The final orders mandated that the appellant pay the respondent’s costs for the failed application for a higher award of costs and the application for leave to appeal, both amounting to $1,500.00.
Orders
Orders of the court
Orders
1. The appellant is ordered to pay the respondent’s costs of and incidental to the appellant’s application for a higher award of costs pursuant to ss 158B and 232A of the Justices Act 1886 in the amount of $1,500.00.
2. The appellant’s application for leave to appeal orders numbered 3, 4 and 5 of the judgment delivered on 29 May 2014 in the matter of Cullinan v McCahon [2014] QDC 120 is dismissed.
3. The appellant is ordered to pay the respondent’s costs of and incidental to the appellant’s application for leave to appeal orders numbered 3, 4 and 5 of the judgment delivered on 29 May 2014 in the matter of Cullinan v McCahon [2014] QDC 120 in the amount of $1,500.00.
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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