Hamcor Pty Ltd v Marsh Pty Ltd

Case [2013] QCA 395

SUPREME COURT OF QUEENSLAND

CITATION:

Hamcor Pty Ltd & Anor v Marsh Pty Ltd & Anor [2013] QCA 395

PARTIES:

HAMCOR PTY LTD
ACN 010 141 429
(first appellant)
TERRENCE ARTHUR ARMSTRONG
(second appellant)
v
MARSH PTY LTD
ABN 86 004 651 512
(first respondent)
OTAGO PTY LTD
ABN 90 010 161 501
(second respondent)
THE STATE OF QUEENSLAND
(not a party to the appeal)

FILE NO/S:

Appeal No 1887 of 2013
SC No 5764 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Margaret McMurdo P, Muir JA and Atkinson J
Judgment of the Court

ORDER:

1.   The appellants are granted leave to make submissions as to costs.

2.   There be no order as to the costs of the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the Court allowed the appellants’ appeal, but only to the extent that the orders of the primary judge were varied by deleting references to the ISR policy – where, as the respondents were “substantially successful”, the appellants were ordered to pay the respondents’ costs of the appeal unless the appellants applied for leave to make submissions as to costs – where the appellants sought leave and submit that, as they enjoyed substantial success in the result, they ought to recover at least half of their costs of the appeal and of the application from the respondents – where, in the alternative, the appellants submit that each party should bear its own costs of the appeal and the application – where the respondents seek to uphold the costs order made on appeal – where, in the alternative, the respondents contend that they should have 80 per cent of their costs of the appeal or that each party should bear its own costs of the appeal – where the appellants submit that it was necessary to bring the appeal as the orders of the primary judge were, in a practical sense, finally determinative of their ultimate claim for relief – where the respondents assumed responsibility for the suitability of the questions posed for separate determination – where, on appeal, the appellants succeeded on grounds that were not advanced before the primary judge or on appeal – whether the general rule that costs follow the event should be departed from

Uniform Civil Procedure Rules 1999 (Qld), r 681, r 766(1)(d)

Alborn & Ors v Stephens & Ors [2010] QCA 58, considered
Hamcor Pty Ltd & Anor v Marsh Pty Ltd & Anor [2013] QCA 262, related
Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 3) [2003] 1 Qd R 26; [2001] QCA 191, cited
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, cited

COUNSEL:

No appearance by the appellants, the appellants’ submissions were heard…

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Hamcor Pty Ltd & Anor v Marsh Pty Ltd & Anor [2013] QCA 395
Case
[2013] QCA 395
Decision Date

CaseChat Overview and Summary

Hamcor Pty Ltd, the appellant, sought leave to make submissions as to the costs of an appeal against Marsh Pty Ltd, the respondent, after the Queensland Court of Appeal had allowed the appeal but varied the orders of the primary judge by deleting references to the ISR policy. The appellants contended that they enjoyed substantial success in the result and, as such, ought to recover at least half of their costs of the appeal and of the application from the respondents. In the alternative, the appellants submitted that each party should bear its own costs of the appeal and the application. The respondents, on the other hand, sought to uphold the costs order made on appeal or, in the alternative, contended that they should have 80 per cent of their costs of the appeal or that each party should bear its own costs of the appeal.

The central legal issue before the court was whether the general rule that costs follow the event should be departed from, given the unique circumstances of the case. The appellants argued that it was necessary to bring the appeal as the orders of the primary judge were, in a practical sense, finally determinative of their ultimate claim for relief. The respondents, however, assumed responsibility for the suitability of the questions posed for separate determination. Additionally, the appellants succeeded on grounds that were not advanced before the primary judge or on appeal. These factors led to the question of whether the general rule of costs following the event should be departed from.

The court granted the appellants leave to make submissions as to costs, acknowledging the unique circumstances of the case. The court found that the general rule of costs following the event should be departed from, as the appellants had succeeded on grounds that were not advanced before the primary judge or on appeal, and the respondents had assumed responsibility for the suitability of the questions posed for separate determination. Consequently, there was no order as to the costs of the appeal, allowing the parties to present their submissions on the matter.

Orders:
1. The appellants are granted leave to make submissions as to costs.
2. There be no order as to the costs of the appeal.

Orders

Orders of the court

1. The appellants are granted leave to make submissions as to costs.

2. There be no order as to the costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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