Deepcliffe Pty Ltd & Anor v The Council of the City of Gold Coast & Anor

[2001] QCA 396

SUPREME COURT OF QUEENSLAND

CITATION:

Deepcliffe P/L & Anor v The Council of the City of Gold Coast & Anor [2001] QCA 396

PARTIES:

DEEPCLIFFE PTY LTD (ACN 010 336 606) AS TRUSTEE OF THE DEEPCLIFFE UNIT TRUST
(first plaintiff/first appellant)
CARKAZIS PARAGON INVESTMENTS PTY LTD (ACN 008 495 261) AS TRUSTEE OF THE CARKAZIS FAMILY TRUST
(second plaintiff/second appellant)
v
THE COUNCIL OF THE CITY OF GOLD COAST
(first defendant/first respondent)
KEITH THOMPSON
(second defendant/second respondent)

FILE NO/S:

Appeal No 10673 of 2000
SC No 156 of 1995

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Judgment delivered 31 August 2001
Further order delivered 25 September 2001

DELIVERED AT:

Brisbane

HEARING DATES:

24 May 2001, 25 May 2001

JUDGES:

McMurdo P, Williams JA and Helman J
Further order of the Court.

ORDER:

The appellant pay the respondents’ costs of the appeal to be assessed

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – application for costs on an indemnity basis in light of a prior offer to settle by the respondent – where Court of Appeal may make the order it considers appropriate – where usual order is that costs are assessed on a standard basis unless some unusual feature – where no such feature distinguishing this case from the norm – where appellant to pay the respondents’ costs to be assessed

Uniform Civil Procedure Rules r 766(1)(d)

Tamwoy v Solomon [1996] 2 Qd R 93, considered
Tector v FAI General Insurance Co [2000] QCA 426, Appeal No 7391 of 1999, 8 December 2000, considered

COUNSEL:

N M Cooke QC with B G Cronin for the appellants
G J Gibson QC with R S Litster for the respondents

SOLICITORS:

Adamson Bernays Kyle & Jones for the appellants
Witheriff Nyst for the respondents

1. THE COURT:  Judgment was delivered in this appeal on 31 August 2001. The appeal was dismissed.  The parties were given leave to file further submissions as to the appropriate costs order which was otherwise to have been that the appellant pay the respondents’ costs of the appeal to be assessed.

1. The respondents (the defendants at trial) made an offer to settle under Chapter 9, Part 5 of the UCPR prior to the trial. The offer was in substance that if the plaintiff discontinued the proceedings each side would bear their own costs; then the plaintiffs were wholly unsuccessful at trial. Consequently on 8 December 2000 the learned trial judge ordered that the appellants (the plaintiffs at trial) pay the respondents'  costs of and incidental to the action, including reserved costs incurred since 22 May 2000 to be assessed on the indemnity basis applicable to actions heard in the District Court when the amount claimed exceeds $50,000.

1. The respondents claim the appropriate costs order in the appeal is that the appellants pay the respondents’ costs of the appeal on an indemnity basis to be assessed, because of the offer to settle prior to trial.

1. In Tector v FAI General Insurance Co[1] this Court held that:

"by r 766(1)(d) the Court of Appeal may make the order as to the whole or part of the costs an appeal which it considers appropriate. There is no suggestion that the regime governing offers to settle in Chapter 9, Part 4 of the UCPR applies to appeals. That was the conclusion of the Court of Appeal in Tamwoy v Solomon [1996] 2 Qd R 93 in respect of O 26 of the Rules of the Supreme Court which were replaced by the UCPR and on this point there appears to be no appreciable difference between Chapter 9, Part 4 and O 26"[2].

[1][2000] QCA 426, Appeal No 7391 of 1999, 8 December 2000.

[2]At para [3]; cf the approach taken by the New South Wales Court of Appeal in Ettingshausen v Australian Consolidated Press Ltd (1995-1996) 38 NSWLR 404; Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425 and Fotheringham v Fotheringham (1998-1999) 46 NSWLR 194 at para [33].

1. The usual order is that costs are assessed on the standard or party-and-party basis and this should only be departed from where there is some unusual or differentiating feature about the case.  It cannot be said that the appellant’s conduct in pursuing this appeal was plainly unreasonable[3] and there is no other feature of this case which distinguishes it from the norm.

   [3]Tector v FAI Insurance Co [2000] QCA 426, Appeal No 7391 of 1999, 8 December 2000 at para [5] and the cases there cited.

1. Although the appellants were wholly unsuccessful in their appeal we are not persuaded that this, combined with the offer to settle, is sufficient reason to order indemnity costs.

1. The appellants contend that the costs of the appeal ordered against them should be limited to one day as much of the second day of the appeal hearing was taken up with the respondents’ notice of contention which was not decisive in the determination of the appeal. Had the appellants not instituted their unsuccessful appeal it would have been unnecessary for the respondents to file and argue their notice of contention. The respondents are entitled to the costs of both days of the appeal on the standard basis.

Order:
The appellants pay the respondents’ costs of the appeal to be assessed.