Income2Wealth Pty Ltd v ACN 114 733 569 Limited [No 2]

[2023] QCA 254

SUPREME COURT OF QUEENSLAND

CITATION:	Income2Wealth Pty Ltd v ACN 114 733 569 Limited [No 2] [2023] QCA 254
PARTIES:	INCOME2WEALTH PTY LTD (appellant) v ACN 114 733 569 LIMITED (respondent)
FILE NO/S:	Appeal No 5884 of 2023 SC No 309 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Order
ORIGINATING COURT:	Supreme Court at Brisbane – [2023] QSC 73 (Ryan J)
DELIVERED ON:	12 December 2023
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Morrison JA, Applegarth and Williams JJ
ORDER:	The appellant pay the respondent’s costs of and incidental to the appeal on the indemnity basis.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – where the appeal was dismissed – where the parties agree costs should follow the event – where the respondent submits that indemnity costs should be awarded because the appellant carried on the appeal unreasonably and irresponsibly – whether the Court ought to exercise its discretion to award costs on an indemnity basis
COUNSEL:	G J Radcliff for the appellant M J May and J T Sargent for the respondent
SOLICITORS:	Radcliffs for the appellant Colin Biggers & Paisley for the respondent

1. MORRISON JA:  I agree with Applegarth J.

2. APPLEGARTH J:  The appellant’s grounds of appeal and submissions failed to engage with the reasons of the primary judge.  They did not address the essential and incontestable fact that the appellant failed to correct the false impression on the face of the documents.[1]

   [1]Income2Wealth Pty Ltd v ACN 114 733 569 Limited [2023] QCA 215 at [42].

3. The appellant’s submissions on costs note that the primary judge stated that “this case is unusual”.[2]  That did not justify an appeal which missed the point, namely the basis upon which the statutory demand was set aside.  The relevant factual finding that the appellant failed to correct the false impression it created was beyond challenge and the legal basis to set aside the demand was clear.

   [2]ACN 114 733 569 Ltd v Income2Wealth Pty Ltd [2023] QSC 73 at [99].

4. The appellant persisted in the appeal in circumstances in which it was apparent from the respondent’s submissions that the appellant’s arguments did not engage with the issue at hand and were bound to fail.

5. The appellant acted unreasonably and irresponsibly in carrying on the appeal.

6. Rather than discontinue the appeal or invite the Court to deal with it on the papers, the appellant persisted and put the respondent to the costs of preparing for and appearing on the appeal.

7. The respondent also had compelling, indeed unanswerable, grounds to resist the appeal on the basis of the notice of contention.  Those grounds were exposed in the respondent’s written submissions and not answered by the appellant in writing or orally.  As paragraph [8] of the respondent’s submissions on costs show, there clearly was a genuine dispute and this fact should have been conceded by the appellant.  This adds to the unreasonableness of the appellant’s conduct in persisting in the appeal.

8. This appeal is one of the rare cases in which the Court should depart from the ordinary rule that costs are awarded on the standard basis.  Persistence in what was a hopeless case, and which the appellant should have known was without any arguable merit, warrants an order that the appellant pay the respondent’s costs of and incidental to the appeal on the indemnity basis.

9. WILLIAMS J:  I have read the draft reasons of Applegarth J in relation to costs and agree with the reasons and proposed order.