Holman v Campbell [No 2] - [2024] QCA 259

SUPREME COURT OF QUEENSLAND

CITATION:

Holman v Campbell [No 2] [2024] QCA 259

PARTIES:

LISA MARIE HOLMAN
(applicant)
v
NICHOLAS ADRIAN CAMPBELL AS TRUSTEE FOR THE CAMPBELL CHILD CARE TRUST TRADING AS FREE RANGE KIDS
ABN 73 752 292 745
(respondent)

FILE NO/S:

Appeal No 4923 of 2024
DC No 3262 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil) – Further Order

ORIGINATING COURT:

District Court at Brisbane – Unreported, 22 March 2024 (Kent KC DCJ)

DELIVERED ON:

17 December 2024

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Mullins P and Boddice JA and Henry J

ORDER:

The applicant will pay the respondent’s costs of the application for leave to appeal, to be assessed on the indemnity basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – where Ms Holman’s application for leave to appeal was refused and Mr Campbell was the successful party on appeal – where both parties filed further submissions and the firm acting for Mr Campbell filed affidavit evidence – where Mr Campbell seeks his costs on the indemnity basis and that the Ms Holman’s solicitor, Mr Abaza, be ordered to pay Ms Holman’s costs pursuant to r 690 Uniform Civil Procedure Rules – where Ms Holman submits the application to the court was reasonable arguable – whether Mr Campbell should have his costs on the indemnity basis – whether Ms Holman’s solicitor, Mr Abaza, be ordered to pay Ms Holman’s costs pursuant to r 690 Uniform Civil Procedure Rules

Uniform Civil Procedure Rules 1999 (Qld), r 690

Chen v Gold Coast Hospital and Health Service[2024] QCA 241, cited
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 536, cited
Holman v Campbell [2024] QCA 176, cited
Hookey v Whitelaw [2021] QCA 213, cited
Mio Art Pty Ltd v Macequest Pty Ltd (No 2) [2013] QSC 271, cited

COUNSEL:

A P Abaza (sol) for the applicant
B J Heath (sol) for the respondent

SOLICITORS:

Andrew P Abaza for the applicant
Carter Newell Lawyers for the respondent

THE COURT: This Court refused Ms Holman’s application for leave to appeal, observing costs should follow the event. However, at the urging of the representative of the successful party, Mr Campbell, the Court allowed the filing of further evidence and submissions as to costs.[1] Both sides filed further submissions and the firm acting for Mr Campbell filed an affidavit by one of its solicitors, Ms Radik.
[1]Holman v Campbell [2024] QCA 176.
Mr Campbell submits that he should have his costs on the indemnity basis. More controversially, he submits Ms Holman’s solicitor, Mr Abaza, should be ordered, per r 690 Uniform Civil Procedure Rules 1999 (Qld), to repay Ms Holman the costs she is ordered to pay.
Should Mr Campbell have his costs on the indemnity basis?
Submissions on whether Mr Campbell should have his costs on the indemnity…

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.

Continue reading Holman v Campbell [No 2]

Details

AGLC: Holman v Campbell [No 2] [2024] QCA 259
Case: [2024] QCA 259
Decision Date: 17 December 2024

CaseChat Overview and Summary

In the case of Holman v Campbell [No 2], the parties were involved in civil proceedings in an Australian state court. The dispute centered around an application for leave to appeal, which was subsequently refused. Mr. Campbell emerged as the successful party on the appeal. Following this, both parties submitted further documentation, and the firm representing Mr. Campbell filed affidavit evidence. Mr. Campbell sought his costs on an indemnity basis and requested that Ms. Holman's solicitor, Mr. Abaza, be ordered to pay Ms. Holman's costs in accordance with Rule 690 of the Uniform Civil Procedure Rules.

The primary legal issues before the court were whether Mr. Campbell should be granted his costs on an indemnity basis and whether Mr. Abaza should be ordered to pay Ms. Holman's costs as per Rule 690. The court was required to consider the reasonableness of Ms. Holman's application for leave to appeal and the overall conduct of the proceedings. The court needed to determine if the application was reasonably arguable and whether the conduct of the proceedings warranted the imposition of costs on an indemnity basis.

The court reasoned that while Ms. Holman's application for leave to appeal was reasonable, the overall outcome of the appeal favoured Mr. Campbell. The court found that the application was not frivolous or vexatious but was instead reasonably arguable. However, the court also considered the conduct of the proceedings and the necessity of the further submissions and affidavit evidence. As a result, the court concluded that Mr. Campbell should be awarded his costs on the indemnity basis, but it did not find it appropriate to order Mr. Abaza to pay Ms. Holman's costs.

The final orders of the court were that Ms. Holman would pay Mr. Campbell's costs of the application for leave to appeal, to be assessed on the indemnity basis. No order was made regarding Mr. Abaza paying Ms. Holman's costs.

Orders

Orders of the court

The applicant will pay the respondent’s costs of the application for leave to appeal, to be assessed on the indemnity basis.

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:	Holman v Campbell [No 2] [2024] QCA 259
PARTIES:	LISA MARIE HOLMAN (applicant) v NICHOLAS ADRIAN CAMPBELL AS TRUSTEE FOR THE CAMPBELL CHILD CARE TRUST TRADING AS FREE RANGE KIDS ABN 73 752 292 745 (respondent)
FILE NO/S:	Appeal No 4923 of 2024 DC No 3262 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil) – Further Order
ORIGINATING COURT:	District Court at Brisbane – Unreported, 22 March 2024 (Kent KC DCJ)
DELIVERED ON:	17 December 2024
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Mullins P and Boddice JA and Henry J
ORDER:	The applicant will pay the respondent’s costs of the application for leave to appeal, to be assessed on the indemnity basis.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – where Ms Holman’s application for leave to appeal was refused and Mr Campbell was the successful party on appeal – where both parties filed further submissions and the firm acting for Mr Campbell filed affidavit evidence – where Mr Campbell seeks his costs on the indemnity basis and that the Ms Holman’s solicitor, Mr Abaza, be ordered to pay Ms Holman’s costs pursuant to r 690 Uniform Civil Procedure Rules – where Ms Holman submits the application to the court was reasonable arguable – whether Mr Campbell should have his costs on the indemnity basis – whether Ms Holman’s solicitor, Mr Abaza, be ordered to pay Ms Holman’s costs pursuant to r 690 Uniform Civil Procedure Rules Uniform Civil Procedure Rules 1999 (Qld), r 690 Chen v Gold Coast Hospital and Health Service[2024] QCA 241, cited Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 536, cited Holman v Campbell [2024] QCA 176, cited Hookey v Whitelaw [2021] QCA 213, cited Mio Art Pty Ltd v Macequest Pty Ltd (No 2) [2013] QSC 271, cited
COUNSEL:	A P Abaza (sol) for the applicant B J Heath (sol) for the respondent
SOLICITORS:	Andrew P Abaza for the applicant Carter Newell Lawyers for the respondent