Fraser Property Developments Pty Ltd v Sommerfeld (No 2)

SUPREME COURT OF QUEENSLAND

CITATION:

Fraser Property Developments P/L v Sommerfeld & Ors [2005] QCA 242

PARTIES:

FRASER PROPERTY DEVELOPMENTS PTY LTD ACN 101 644 026
(plaintiff/first respondent)
v
ROBERT PETER SOMMERFELD
(first defendant/second respondent)
SYDNEY BALE
(second defendant/third respondent)
BURNETT SHIRE COUNCIL
(third defendant/appellant)

FILE NO/S:

Appeal No 10072 of 2004
SC No 290 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

Judgment delivered 29 April 2005
Further Order delivered 15 July 2005

DELIVERED AT:

Brisbane

HEARING DATE:

19 April 2005

JUDGES:

McPherson and Williams JJA and Philippides J
Separate reasons for further order of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Application for an order for the costs of appeal granted

2.    Respondent to the appeal Robert Peter Sommerfeld to pay the costs of the appellant Burnett Shire Council of the appeal and of and incidental to the application made by him on 2 August 2004

CATCHWORDS:

PROCEDURE – COSTS – unsuccessful respondent to appeal declared bankrupt – appellant sought costs of application and appeal – whether application for costs within restrictions of s 58(3) Bankruptcy Act 1966 (Cth) – whether appeal, submission on appeal or order amount to a fresh step within s 58(3) – whether costs are a “provable debt” within s 58(3)

Bankruptcy Act 1966 (Cth), s 58, s 60, s 82
Uniform Civil Procedure Rules 1999 (Qld), r 72

Australian Securities and Investments Commission v Loiterton (2004) 50 ACSR 693, cited
British Gold Fields of West Africa, Re [1899] 2 Ch 7, considered
Glenister v Rowe [2000] Ch 76, considered
Vint v Hudspith (1885) 30 Ch D 24, considered

COUNSEL:

P H Morrison QC, with R Ashton, for the appellant
No appearance for the respondents

SOLICITORS:

Barry & Nilsson for the appellant
No appearance for the respondents

1. : McPHERSON JAAfter hearing submissions on appeal on 19 April 2005, this Court on 29 April 2005, gave judgment in Fraser Property Developments Pty Ltd v Sommerfeld, Bale and Burnett Shire Council [2005] QCA 134 allowing the appeal and setting aside the order of the Supreme Court made on 22 October 2004. In the reasons for judgment delivered on 29 April we reserved our decision as to the incidence of costs arising out of the order on the appeal.

1. It will be recalled that the plaintiff Fraser Property Developments Pty Ltd was the building proprietor under a contract for construction of a house by the first defendant Sommerfeld. He engaged the second defendant Bale, who claimed to be an engineer, to design footings and slab for the building. In doing so he, or so it is alleged in the action, failed to design them with proper care and in accordance with the relevant Australian standards. In the action that ensued in the Supreme Court against the defendants, the third defendant Burnett Shire Council was sued for failing to see that the design plans which it passed…