EMClarity Pty Ltd v BSO Network Inc [No 2] - [2023] QCA 11

SUPREME COURT OF QUEENSLAND

CITATION:

EMClarity Pty Ltd v BSO Network Inc & Anor [No 2] [2023] QCA 11

PARTIES:

In Appeal No 11321 of 2021:

EMCLARITY PTY LTD
ACN 139 128 180
(appellant)
v
BSO NETWORK INC
(first respondent)
APSARA NETWORKS INC
(second respondent)

In Appeal No 10237 of 2022:

BSO NETWORK INC
(first appellant)
APSARA NETWORKS INC
(second appellant)
v
EMCLARITY PTY LTD
ACN 139 128 180
(respondent)

FILE NO/S:

Appeal No 11321 of 2021
Appeal No 10237 of 2022
SC No 12112 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeals – Further Orders

ORIGINATING COURT:

Supreme Court at Brisbane – [2021] QSC 73 (Ryan J)

DELIVERED ON:

10 February 2023

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

McMurdo and Bond JJA and Flanagan J

ORDERS:

1.   In appeal number 11321 of 2021, the appellant pay to the respondents 95 per cent of their costs of that appeal.

2.   In appeal number 10237 of 2022, the respondent pay to the appellants 95 per cent of their costs of that appeal.

3.   The appeal against order number 12 made in the Trial Division on 31 August 2021 be dismissed.

4.   BSO Network Inc and Apsara Networks Inc be discharged from the undertakings given in the Trial Division on 5 September 2022.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellant in appeal number 11321 of 2021 and respondent in appeal number 10237 of 2022 (“EMC”) had limited success on appeal – where the respondents in appeal number 11321 of 2021 and appellants in appeal number 10237 of 2022 (collectively, the “BSO parties”) enjoyed substantial success on appeal – where the point on which EMC succeeded was a short one which could not have constituted anything but a small proportion of EMC’s costs – where the point on which the BSO parties succeeded was substantial in its complexity, the time it occupied in the arguments, and in the likely costs of the preparation of the appeal – in what proportion the costs should be apportioned

Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39, cited
AION Corporation Pty Ltd v Yolla Holdings Pty Ltd [2013] QSC 191, cited

COUNSEL:

D G Clothier KC, with D E F Chesterman, for the appellant/respondent
D O’Brien KC, with F Lubett, for the respondents/appellants

SOLICITORS:

Ashurst Australia for the appellant/respondent
Johnson Winter & Slattery for the respondents/appellants

McMURDO JA: This judgment deals with the outstanding questions of costs in the proceeding which was determined by this Court’s judgment last September.[1]
[1]EMClarity Pty Ltd v BSO Network Inc & Anor [2022] QCA 177.
It is necessary to repeat what was said in the judgment about the five questions which this Court had to answer:
In essence, EMC’s appeal and the respondents’ appeal and cross-appeal raise five questions, namely:
1. Whether the 2019 agreements constituted variations to the 2018 agreement, or whether, as the…

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.

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Details

Case: [2023] QCA 11
Decision Date: 10 February 2023

CaseChat Overview and Summary

The matter before the court involved a dispute between EMClarity Pty Ltd and BSO Network Inc, with the proceedings being heard in the Queensland Courts. The case revolved around a complex web of legal issues arising from an appeal and a subsequent cross-appeal. EMClarity, initially the appellant in appeal number 11321 of 2021, achieved limited success on appeal, while BSO Network Inc and related parties, who were respondents in the first appeal, enjoyed substantial success on their cross-appeal in appeal number 10237 of 2022.

The court was tasked with determining the appropriate allocation of costs between the parties, given the differing degrees of success. EMClarity succeeded on a relatively minor point, which likely constituted a small fraction of their overall costs. Conversely, the BSO parties' successful appeal involved more complex issues, requiring substantial argument and preparation time, and likely resulting in higher costs. The court had to balance these factors to determine the proportionality of the costs between the parties.

The court ruled that the appellant in appeal number 11321 of 2021, EMClarity, should pay 95% of the respondents' costs in that appeal, reflecting their limited success. Conversely, in appeal number 10237 of 2022, the respondents were ordered to pay 95% of the appellants' costs, acknowledging the substantial success enjoyed by the BSO parties. Additionally, the court dismissed the appeal against a specific order made in the Trial Division and discharged certain undertakings previously given by BSO Network Inc and Apsara Networks Inc.

The final orders required EMClarity to pay 95% of the respondents' costs in the first appeal, while the BSO parties were to bear 95% of the appellants' costs in the second appeal. The court also dismissed the appeal against an earlier order and discharged specific undertakings given by two of the parties.

Orders

Orders of the court

1. In appeal number 11321 of 2021, the appellant pay to the respondents 95 per cent of their costs of that appeal.

2. In appeal number 10237 of 2022, the respondent pay to the appellants 95 per cent of their costs of that appeal.

3. The appeal against order number 12 made in the Trial Division on 31 August 2021 be dismissed.

4. BSO Network Inc and Apsara Networks Inc be discharged from the undertakings given in the Trial Division on 5 September 2022.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	EMClarity Pty Ltd v BSO Network Inc & Anor [No 2] [2023] QCA 11
PARTIES:	In Appeal No 11321 of 2021: EMCLARITY PTY LTD ACN 139 128 180 (appellant) v BSO NETWORK INC (first respondent) APSARA NETWORKS INC (second respondent) In Appeal No 10237 of 2022: BSO NETWORK INC (first appellant) APSARA NETWORKS INC (second appellant) v EMCLARITY PTY LTD ACN 139 128 180 (respondent)
FILE NO/S:	Appeal No 11321 of 2021 Appeal No 10237 of 2022 SC No 12112 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeals – Further Orders
ORIGINATING COURT:	Supreme Court at Brisbane – [2021] QSC 73 (Ryan J)
DELIVERED ON:	10 February 2023
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	McMurdo and Bond JJA and Flanagan J
ORDERS:	1. In appeal number 11321 of 2021, the appellant pay to the respondents 95 per cent of their costs of that appeal. 2. In appeal number 10237 of 2022, the respondent pay to the appellants 95 per cent of their costs of that appeal. 3. The appeal against order number 12 made in the Trial Division on 31 August 2021 be dismissed. 4. BSO Network Inc and Apsara Networks Inc be discharged from the undertakings given in the Trial Division on 5 September 2022.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellant in appeal number 11321 of 2021 and respondent in appeal number 10237 of 2022 (“EMC”) had limited success on appeal – where the respondents in appeal number 11321 of 2021 and appellants in appeal number 10237 of 2022 (collectively, the “BSO parties”) enjoyed substantial success on appeal – where the point on which EMC succeeded was a short one which could not have constituted anything but a small proportion of EMC’s costs – where the point on which the BSO parties succeeded was substantial in its complexity, the time it occupied in the arguments, and in the likely costs of the preparation of the appeal – in what proportion the costs should be apportioned Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39, cited AION Corporation Pty Ltd v Yolla Holdings Pty Ltd [2013] QSC 191, cited
COUNSEL:	D G Clothier KC, with D E F Chesterman, for the appellant/respondent D O’Brien KC, with F Lubett, for the respondents/appellants
SOLICITORS:	Ashurst Australia for the appellant/respondent Johnson Winter & Slattery for the respondents/appellants