Kingsley's Chicken Pty Limited v Queensland Investment Corporation and Canberra Centre Investments Pty Limited;; Queensland Investment Corporation and Canberra Centre Investments Pty Limited v Kingsley's Chicken...
[2009] ACTCA 14
•8 October 2009
KINGSLEY’S CHICKEN PTY LIMITED v QUEENSLAND INVESTMENT CORPORATION AND CANBERRA CENTRE INVESTMENTS PTY LIMITED;
QUEENSLAND INVESTMENT CORPORATION AND CANBERRA CENTRE INVESTMENTS PTY LIMITED v KINGSLEY’S CHICKEN PTY LIMITED (NO 3)
[2009] ACTCA 14 (8 October 2009)
COSTS – broad discretion of the court – order as to costs for matters below – single costs order for appeals.
Trade Practices Act 1974 (Cth)
Dal Pont G E, Law of Costs (2nd ed, LexisNexis Butterworths, 2009)
Kingsley’s Chicken Pty Limited v Queensland Investment Corporation and Canberra Centre Investments Pty Limited; Queensland Investment Corporation and Canberra Centre Investments Pty Limited v Kingsley’s Chicken Pty Limited [2009] ACTCA 9
Kingsley’s Chicken Pty Limited v Queensland Investment Corporation and Canberra Centre Investments Pty Limited; Queensland Investment Corporation and Canberra Centre Investments Pty Limited v Kingsley’s Chicken Pty Limited (No 2) [2009] ACTCA 11
Kingsley’s Chicken Pty Limited v Queensland Investment Corporation and Canberra Centre Investments Pty Limited (2007) 214 FLR 253
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 39 of 2007
No. ACTCA 40 of 2007
No. SCA 12 of 2007
Judges: Refshauge, Penfold and Besanko JJ
Court of Appeal of the Australian Capital Territory
Date: 8 October 2009
IN THE SUPREME COURT OF THE ) No. ACTCA 39 of 2007
) No. SCA 12 of 2007
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:KINGSLEY’S CHICKEN PTY LIMITED
Appellant
AND:QUEENSLAND INVESTMENT CORPORATION
AND:CANBERRA CENTRE INVESTMENTS PTY LIMITED
Respondents
Judges: Refshauge, Penfold and Besanko JJ
Date: 8 October 2009
Place: Canberra
ORDER
THE COURT ORDERS IN ADDITION TO THE ORDERS MADE ON 28 MAY 2009 THAT:
With respect to the order made by Higgins CJ on 26 September 2007 in SCA 12 of 2007 that costs be reserved, that order be set aside and in lieu thereof there be an order that the appellant to that appeal (Kingsley’s Chicken Pty Ltd) pay the respondents 70 per cent of their costs of that appeal.
The respondents’ costs of this appeal and their costs (as appellants) in the appeal in ACTCA 40 of 2007 be assessed in default of agreement and the appellant in this appeal pay the respondents 80 per cent of the total amount.
IN THE SUPREME COURT OF THE ) No. ACTCA 40 of 2007
) No. SCA 12 of 2007
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:QUEENSLAND INVESTMENT CORPORATION
AND:CANBERRA CENTRE INVESTMENTS PTY LIMITED
Appellants
AND:KINGSLEY’S CHICKEN PTY LIMITED
Respondent
Judges: Refshauge, Penfold and Besanko JJ
Date: 8 October 2009
Place: Canberra
ORDER
THE COURT ORDERS IN ADDITION TO THE ORDERS MADE ON 28 MAY 2009 THAT:
The order made by Magistrate Burns on 15 June 2007 in CL 06/31 that the applicant/lessee is to pay the respondent/lessor’s costs of the respondent claim under the Trade Practices Act1974 (Cth) on a party/party basis as agreed or taxed at 90 per cent of the Supreme Court Scale, be set aside and in lieu thereof there be an order that the respondent/lessor pay the applicant/lessee’s costs of the respondent/lessor’s claim under the Trade Practices Act 1974 (Cth) on a party/party basis as agreed or assessed at 90 per cent of the Supreme Court Scale.
With respect to the order made by Higgins CJ on 26 September 2007 in SCA 12 of 2007 that costs be reserved, that order be set aside and in lieu thereof there be an order that the appellant to that appeal (Kingsley’s Chicken Pty Limited) pay the respondents 70 per cent of their costs of that appeal.
The appellants’ costs of this appeal and their costs (as respondents) in the appeal in ACTCA 39 of 2007 be assessed in default of agreement and the respondent to this appeal pay the appellant 80 per cent of the total amount.
IN THE SUPREME COURT OF THE ) No. ACTCA 39 of 2007
) No. SCA 12 of 2007
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:KINGSLEY’S CHICKEN PTY LIMITED
Appellant
AND:QUEENSLAND INVESTMENT CORPORATION
AND:CANBERRA CENTRE INVESTMENTS PTY LIMITED
Respondents
IN THE SUPREME COURT OF THE ) No. ACTCA 40 of 2007
) No. SCA 12 of 2007
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:QUEENSLAND INVESTMENT CORPORATION
AND:CANBERRA CENTRE INVESTMENTS PTY LIMITED
Appellants
AND:KINGSLEY’S CHICKEN PTY LIMITED
Respondent
Judges: Refshauge, Penfold and Besanko JJ
Date: 8 October 2009
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
The Court made orders in these two appeals on 28 May 2009 (Kingsley’s Chicken Pty Limited v Queensland Investment Corporation and Canberra Centre Investments Pty Limited; Queensland Investment Corporation and Canberra Centre Investments Pty Limited v Kingsley’s Chicken Pty Limited [2009] ACTCA 9). The Court gave the parties leave to file written submissions on any other orders and on the question of costs. The tenant sought to have the question of costs deferred pending an application by it to the High Court of Australia for special leave to appeal from the orders already made. That application for deferment was refused (see Kingsley’s Chicken Pty Limited v Queensland Investment Corporation and Canberra Centre Investments Pty Limited; Queensland Investment Corporation and Canberra Centre Investments Pty Limited v Kingsley’s Chicken Pty Limited (No 2) [2009] ACTCA 11). Both parties have filed written submissions. Neither party has sought orders other than orders as to costs.
It is necessary for this Court to make the orders as to costs which should have been made in the Supreme Court appeal matter of SCA 12 of 2007 (Kingsley’s Chicken Pty Limited v Queensland Investment Corporation and Canberra Centre Investments Pty Limited (2007) 214 FLR 253) (including any order as to the costs of the proceedings in the Magistrates Court) and orders as to the costs of the two appeals to this Court.
It is convenient to start with the orders as to costs which should have been made in the Supreme Court appeal matter of SCA 12 of 2007.
On 2 February 2007, the Magistrates Court made the following orders:
1) Proceedings in matter CL 04/21 are dismissed.
2)In matter CL 06/31 the lessee’s application is dismissed. There is judgement [sic] for the lessor in the sum of $82,795.21 on the counterclaim.
On 15 June 2007, the Magistrates Court made the following orders:
1)By consent, the judgment entered on behalf of the respondent/lessor on 2 February 2007 is amended to one of $50,000. The applicant/lessee is to pay the respondent/lessors [sic] costs of the respondent [sic] claim under the Trade Practices Act on a party/party basis as agreed or taxed at 90 % of the Supreme Court Scale, otherwise no order for costs.
2)Reasons published.
The only order for costs made by the Magistrates Court in the proceedings before that Court related to the lessor’s counterclaim in the unconscionable conduct proceedings. The Magistrate considered that an order for costs should be made in the lessor’s favour because it had been successful on that claim. The appeal by the tenant against the lessor’s counterclaim was upheld in the Supreme Court appeal in SCA 12 of 2007 and a further appeal by the lessor against the decision of the Supreme Court has been rejected by this Court. The result is that the lessor’s counterclaim in the unconscionable conduct proceedings should have failed in the Magistrates Court. We see no reason why, in those circumstances, the lessor should not pay the tenant’s costs of that claim. We will set aside the order of the Magistrates Court and make such an order.
We turn now to the question of the costs of the appeal in SCA 12 of 2007. The orders made by the Supreme Court on 26 September 2007 were as follows:
1) The appeal be upheld.
2) The judgment and order of the cross-claim be set aside.
3)The application of the lessee to replace the valuer be remitted to the learned Magistrate to be heard and determined according to law.
4)Costs reserved.
5)Liberty to approach list clerk.
This Court has already dealt with orders 1, 2 and 3. The Supreme Court has not made an order for costs in relation to the appeal it heard. However, neither party suggested that this Court is not able to make an order as to the costs of the appeal to the Supreme Court, and both parties made submissions as to the appropriate order. We propose to set aside order 4, and to make an order for the costs of the appeal to the Supreme Court.
Before the Supreme Court, the lessor should have succeeded on that aspect of the tenant’s appeal which related to the valuation proceedings and it did succeed on that aspect of the tenant’s appeal which related to the tenant’s claim in the unconscionable conduct proceedings. The lessor was unsuccessful on that aspect of the tenant’s appeal relating to its counterclaim in the unconscionable conduct proceedings. The tenant should have failed on that aspect of its appeal relating to the valuation proceedings and did fail on that aspect of its appeal which related to its claim in the unconscionable conduct proceedings. The tenant succeeded in relation to that aspect of its appeal which related to the lessor’s counterclaim in the unconscionable conduct proceedings.
The lessor submits that it should receive its costs of the appeal to the Supreme Court. The tenant submits that there should be no order as to the costs of the appeal to the Supreme Court. We do not accept the contention of either party. The lessor’s contention must be rejected because it fails to recognise that the lessor was unsuccessful in relation to its counterclaim in the unconscionable conduct proceedings. The tenant’s contention must be rejected because it fails to recognise that the lessor should have been substantially successful in the appeal to the Supreme Court.
In its written submissions, the tenant identified a number of issues within the valuation proceedings upon which it submits it was successful. No doubt there are circumstances in which a court will reflect success or failure on particular issues in its order for costs. Indeed, we propose to do that in relation to the lessor’s failure on its counterclaim in the unconscionable conduct proceedings. However, we do not think that it is appropriate to descend to the level of detail in terms of issues which is implicit in the submissions made by the tenant (see Dal Pont G E, Law of Costs (2nd ed, LexisNexis Butterworths, 2009) (pages 212-213, [8.7]-[8.8])).
We recognise that there are elements of impression and broad discretion in our approach to the question of the costs of the appeal to the Supreme Court in SCA 12 of 2007. However, we think that the appropriate order is that the tenant pay the lessor 70 per cent of its costs of the appeal to the Supreme Court.
In relation to the costs of the two appeals before this Court, we think that it is appropriate to take the same approach. In essence, the lessor has succeeded in the valuation proceedings and in relation to the tenant’s claim in the unconscionable conduct proceedings. The lessor has failed in relation to its own counterclaim in the unconscionable conduct proceedings. The lessor’s approach before this Court to that aspect of its appeal relating to its counterclaim in the unconscionable conduct proceedings was dealt with by Besanko J in this Court’s earlier reasons in the appeals (Kingsley’s Chicken Pty Limited v Queensland Investment Corporation and Canberra Centre Investments Pty Limited; Queensland Investment Corporation and Canberra Centre Investments Pty Limited v Kingsley’s Chicken Pty Limited [2009] ACTCA 9) (at [142]).
The appeals were heard together and we think that the most convenient course is that there be one costs order in relation to the total costs of the two appeals. The lessor has been substantially successful. Again, we recognise that there are elements of impression and broad discretion in our approach to the question of costs. However, we think the appropriate order is that the tenant pay 80 per cent of the lessor’s total costs of the two appeals.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 8 October 2009
Counsel for the Appellant (in ACTCA 39
of 2007) and Respondent (in ACTCA 40 of
2007): Mr C M Erskine SC
Solicitor for the Appellant (in ACTCA 39
of 2007) and Respondent (in ACTCA 40 of
2007):Bradley Allen Lawyers (at Hearing) and Meyer Vandenberg (from 7 May 2009)
Counsel for the First and Second
Respondents (in ACTCA 39 of 2007) and
Appellants (in ACTCA 40 of 2007): Mr F J Purnell SC
Solicitor for the First and Second
Respondents (in ACTCA 39 of 2007) and
Appellants (in ACTCA 40 of 2007): Mallesons Stephen Jaques
Dates of Written Submissions (ACTCA
39 of 2007; ACTCA 40 of 2007): 11 June and 13 August 2009
Date of Judgment: 8 October 2009
1
2
1