Geary v REJV Services Pty Ltd

[2010] QCA 35

[2010] QCA 35

COURT OF APPEAL

McMURDO P
MUIR JA
P LYONS J

Appeal No 11176 of 2009
SC No 212 of 2008

JAMES LEONARD GEARY  (Not party to appeal)/
  Plaintiff

and

REJV SERVICES PTY LTD  First Appellant/
  First Defendant

and

ZINIFEX CENTURY LIMITED  (Not party to appeal)/
  Second Defendant

and

BRADKEN RESOURCES PTY LIMITED  Second Appellant/
  Third Defendant

and

UNITED GROUP RESOURCES   Third Appellant/
(SERVICES) LIMITED  Fourth Defendant

and

DOWNER EDI MINING PTY LTD   Respondent/Third Party

and

CAPENA SURFACE MINING PTY LIMITED            (Not party to appeal)/
  Third Party

BRISBANE

DATE 26/02/2010

JUDGMENT

THE PRESIDENT:  The parties have reached agreement as to the substantive orders that should be made in this appeal.  Those orders are that by consent the appeal is allowed; the appellants are given leave to re-plead; and the appellants are to pay the respondent's costs of the application below to be assessed, if not agreed.  The parties dispute the appropriate costs order to be made in respect of this appeal.  The orders about which the parties have now agreed and the correspondence between the parties in Exhibit 3 demonstrate that the appellants' concession, that their pleadings below were not effective, was not made until the hearing of this appeal.  In those unusual circumstances, the appropriate order is that the appellants pay the respondent's costs of this appeal to be assessed, if not agreed.

MUIR JA:  I agree.  Until the concession made during the hearing by counsel for the appellant, the respondent was in a position whereby it was obliged to defend the judgment at first instance.

P LYONS J:  I agree.

THE PRESIDENT:  Those are the orders of the Court.