Famestock Pty Ltd v The Body Corporate for No 9 Port Douglas Road Community Title Scheme 24368

[2015] QCA 142

SUPREME COURT OF QUEENSLAND

CITATION:

Famestock Pty Ltd v The Body Corporate for No 9 Port Douglas Road Community Title Scheme 24368 [2015] QCA 142

PARTIES:

FAMESTOCK PTY LTD
ACN 010 499 989
(appellant/cross-respondent)
v
THE BODY CORPORATE FOR NO 9 PORT DOUGLAS ROAD COMMUNITY TITLE SCHEME 24368
(respondent/cross-appellant)

FILE NO:

Appeal No 11300 of 2012
SC No 48 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

Supreme Court at Cairns – [2012] QSC 129

DELIVERED ON:

7 August 2015

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Fraser JA and Douglas J
Judgment of the Court

ORDERS:

1.   The costs the Appellant was ordered to pay to the Respondent by order made on 29 November 2013 in Supreme Court proceeding no. 48 of 2008 (the Supreme Court Proceeding) be fixed in the amount of $178,351.16.

2.   The amounts paid by the Appellant and received by the Respondent as security for costs in the Supreme Court Proceeding, being $75,000.00, be offset against the costs fixed in order no. 1 above, leaving a balance of $103,351.16 due to the Respondent.

3.   The costs the Appellant was ordered to pay to the Respondent by order made on 29 November 2013 in this Appeal proceeding (the Appeal Proceeding) be fixed in the amount of $70,173.08.

4.   The amount paid by the Appellant and received by the Respondent as security for costs in the Appeal Proceeding, being $21,278.34, be offset against the costs fixed with respect to the Appeal Proceeding in order no. 3 above, leaving a balance due to the Respondent in the sum of $48,894.74.

5.   The indemnity costs the Appellant was ordered to pay to the Respondent by order made 8 June 2012 by Henry J in the Supreme Court Proceeding be fixed in the amount of $1,243.31.

6.   The costs the Appellant was ordered to pay to the Respondent by order made 23 September 2011 by Henry J in the Supreme Court Proceeding be fixed in the amount of $14,233.00.

CATCHWORDS:

PROCEDURE – COSTS – ORDER FOR COSTS – where the respondent applied for orders fixing the amounts for costs payable to it by the appellant following the conclusion of the substantive litigation – where an affidavit by a solicitor sufficiently established that the amounts sought to be fixed are reasonable and proper amounts to be fixed as the costs payable under the costs orders

Uniform Civil Procedure Rules 1999 (Qld), r 687

COUNSEL:

No appearance by the appellant/cross-respondent, the appellant’s/cross-respondent’s submissions were heard on the papers
No appearance by the respondent/cross-appellant

SOLICITORS:

Thynne & Macartney for the appellant/cross-respondent
No appearance for the respondent/cross-appellant

1. THE COURT:  The respondent has applied for orders fixing the amounts for costs payable to it by the appellant under four costs orders: see Uniform Civil Procedure Rules 1999, r 687(2)(c). The substantive litigation was concluded by a judgment of the Court of Appeal in late 2013.[1]  An affidavit by a solicitor sufficiently establishes that the amounts sought to be fixed are reasonable and proper amounts to be fixed as the costs payable under the costs orders.  The appellant has not sought to be heard after being notified of the application and that the Court proposes to decide it on the papers and make orders as sought by the respondent.  In these circumstances it is appropriate to make orders substantially in the form sought.

   [1]Famestock Pty Ltd v The Body Corporate for No 9 Port Douglas Road Community Title Scheme 24368 [2013] QCA 354 (de Jersey CJ, Fraser JA and Douglas J). Pursuant to s 31(1) of the Supreme Court of Queensland Act 1991, the effect of de Jersey CJ’s resignation as a judge on 8 July 2014 is that the remaining two judges may finish the hearing and determination of the proceeding.

2. The Court orders as follows:

   1.The costs the Appellant was ordered to pay to the Respondent by order made on 29 November 2013 in Supreme Court proceeding no. 48 of 2008 (the Supreme Court Proceeding) be fixed in the amount of $178,351.16.

   2.The amounts paid by the Appellant and received by the Respondent as security for costs in the Supreme Court Proceeding, being $75,000.00, be offset against the costs fixed in order no. 1 above, leaving a balance of $103,351.16 due to the Respondent.

   3.The costs the Appellant was ordered to pay to the Respondent by order made on 29 November 2013 in this Appeal proceeding (the Appeal Proceeding) be fixed in the amount of $70,173.08.

   4.The amount paid by the Appellant and received by the Respondent as security for costs in the Appeal Proceeding, being $21,278.34, be offset against the costs fixed with respect to the Appeal Proceeding in order no. 3 above, leaving a balance due to the Respondent in the sum of $48,894.74.

   5.The indemnity costs the Appellant was ordered to pay to the Respondent by order made 8 June 2012 by Henry J in the Supreme Court Proceeding be fixed in the amount of $1,243.31.

   6.The costs the Appellant was ordered to pay to the Respondent by order made 23 September 2011 by Henry J in the Supreme Court Proceeding be fixed in the amount of $14,233.00.