Dart v Singer - [2010] QCA 185

SUPREME COURT OF QUEENSLAND

CITATION:

Dart & Anor v Singer [2010] QCA 185

PARTIES:

DART, Frederick William
(first applicant/cross-respondent)
v
SINGER, Clifford
(respondent/cross-applicant)

HAJRIDIN, Megan Ann
(second applicant/cross-respondent)
v
SINGER, Clifford
(respondent/cross-applicant)

FILE NO/S:

CA No 21 of 2010
CA No 22 of 2010
CA No 112 of 2010
CA No 113 of 2010
DC No 452 of 2008
DC No 453 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time s118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Ex tempore judgment delivered 27 May 2010
Further Orders delivered 23 July 2010

DELIVERED AT:

Brisbane

HEARING DATE:

27 May 2010

JUDGES:

McMurdo P, Cullinane and McMeekin JJ
Judgment of the Court

FURTHER ORDER:

The applicants are to pay the respondent's costs of the stay applications (Dart & Anor v Singer [2010] QCA 75) to be assessed if not agreed.

CATCHWORDS:

PROCEDURE – COSTS – INTERLOCUTORY PROCEEDINGS – TIME TO APPLY FOR COSTS –applications for stay orders refused in earlier appeal – respondent seeks costs of stay application following the event – parties granted leave to make submissions in respect of the appropriate costs order for stay applications – respondent failed to ask for costs at time stays were refused – whether respondent now entitled to costs in respect of interlocutory application

Dart & Anor v Singer[2010] QCA 75, cited
Drew v Makita (Australia)[2008] QCA 312, distinguished
Lyon v Mercer (1823) 1 Sim & St 356; 57 ER 143; [1823] Eng R 455, cited
Mentors Ltd v Evans [1912] 3 KB 174, cited

COUNSEL:

The first applicant appeared for himself and the co-applicant
R G Fryberg for the respondent

SOLICITORS:

The first applicant appeared for himself and the co-applicant
Roberts Nehmer McKee Lawyers for the respondent

[1] THE COURT: On 27 May 2010 at Townsville, this Court ordered that the applicants' (Frederick William Dart and Megan Ann Hajridin) applications to extend time to apply for leave to appeal (CA Nos 21 and 22 of 2010) be dismissed by consent and that the applicants pay the respondent's (Clifford Singer) costs of those applications on the standard basis to be assessed if not agreed. The applicants' applications for stays of the orders subject to their applications to extend time to apply for leave to appeal were refused on 30 March 2010: Dart & Anor v Singer.[1] On 27 May 2010, this Court allowed the parties to make submissions in respect of those costs.

[1][2010] QCA 75.

[2] The respondent contends that, as the applicants were unsuccessful in their applications for stays, and as no other order was made at the time the stay applications were refused, the respondent should now have his costs of those stay applications. He cites by way of supporting authority Lyon v Mercer;[2] Mentors Ltd v Evans.[3] He contends it would have been inappropriate and time-wasting for him to have asked for costs of the stay applications, or even to…

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.

Continue reading Dart v Singer

Details

AGLC: Dart v Singer [2010] QCA 185
Case: [2010] QCA 185
Decision Date: 23 July 2010

CaseChat Overview and Summary

The case of Dart v Singer was heard in the Federal Court of Australia. The dispute revolves around the costs incurred in relation to interlocutory proceedings, specifically the time frame within which a party can apply for costs following a refusal of a stay order. The respondent in this case had previously sought a stay order, which was denied. Following the conclusion of the event, the respondent sought costs associated with the interlocutory application for the stay order, despite not having requested such costs at the time the stay was refused. Both parties were granted leave to submit their views on the appropriate costs order for the stay applications.
The central legal issue before the court was whether the respondent was entitled to claim costs in relation to the interlocutory application, given that they did not seek costs at the time the stay was refused. The court had to consider the procedural rules and the principles governing the awarding of costs in interlocutory proceedings, particularly focusing on the timing of the application for costs and the circumstances under which such costs may be claimed.

In its decision, the court held that the respondent was not entitled to costs for the interlocutory application for the stay order. The court emphasised that the respondent had not requested costs at the appropriate time, which was when the stay order was refused. The court underscored the importance of adhering to procedural timelines and noted that costs should generally be sought promptly after an interlocutory decision. Furthermore, the court considered the respondent's failure to request costs at the time of the stay application as a significant factor in its decision. The court found that this failure to promptly seek costs undermined the respondent's entitlement to recover costs for the interlocutory proceedings.

The court's decision was that the respondent was not entitled to the costs of the interlocutory application for the stay order. This outcome was based on the procedural requirements and the timing of the respondent's application for costs. The court's ruling highlighted the importance of procedural compliance and the necessity for parties to seek costs at the appropriate juncture in litigation proceedings.

Orders