Ian Douglas Warry v P B Pty Ltd

[2000] QCA 428

[2000] QCA 428

COURT OF APPEAL

PINCUS JA

THOMAS JA

HELMAN J

Appeal No 6298 of 1998

IAN DOUGLAS WARRY Appellant

and

P B PTY LTD   Respondent

BRISBANE

..DATE 18/10/2000

JUDGMENT

PINCUS JA:This is an application made by the respondent to an appeal in this Court for an order that the sum of $5,000.00 paid into Court for security of costs of the appeal be paid out of Court to the solicitors for the respondent.

It is supported by an affidavit by Mr P C V Bray which swears to the fact that a costs assessment was filed (the appeal brought by Mr Warry, the appellant, having been dismissed with costs) and that on the date for the costs assessment the Registrar assessed the costs at $8,450.00.

We have been informed by Mr Warry today that it turned out not to suit him to turn up on that day because he apparently had other commitments.  This situation is dealt with by the Rules; that is, r.719 deals with the case where there is no objection made to the costs statement and it says you can apply under r.720 to have the costs assessed in the absence of a party, set aside or varied.

The applicant, whether or not he took that course, has arrived today devoid of any affidavit and on the basis of assertions from the Bar table asks us, in effect, to refuse the order for $5,000.00, mainly because he is owed half the cost of the record.

The basis on which this is done seems to me to have no substance whatever.  The correspondence shows that in July 1999 Mr Warry wrote to the solicitors on the other side asking for half of $3,679.20 and on receipt of that a copy of the record book would be sent.  As Mr Warry says, subsequently to that there were additions to the appeal record book and they are mentioned at Exhibit "R".  The assertion that Mr Warry made (and this is really the problem with there being no evidence) is that the additions increased the size of the record to 12 books but that seems quite inconsistent with Exhibit "E". 

Assuming that half of the sum of $3,769.20 which is the only figure we have got in the material before us was due, then it is plain that the $5,000.00 should be paid.  Assuming that the suspiciously round figure of $7,000.00, which

Mr Warry wants us to accept in lieu of the $3,769.20 as the cost of the record, is the correct figure then the correct sum to be paid would be not $5,000.00 but slightly less.

In the circumstances, the opposition to the order which is sought seems to me to be quite frivolous and a complete waste of the Court's time.  In my opinion the order which should be made is as per the application; that is, that the sum of $5,000.00 paid into Court for security of costs of the appeal by the appellant be paid out of Court to the solicitor for the respondent/defendant.  And I would also order that the appellant, Mr Warry, pay the costs of today's hearing.

HELMAN J:I agree.

THOMAS JA:  I agree.

PINCUS JA:Those will be the orders.  We will now adjourn.

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