Kirkby v Coote

[2006] QCA 87

SUPREME COURT OF QUEENSLAND

CITATION:

Kirkby & Anor v Coote & Ors  [2006] QCA 87

PARTIES:

SYDNEY KIRKBY and JUDITH LANG
(plaintiffs/respondents)
v
JOHN WALTER COOTE
(first defendant)
JOHN TITMUS
(second defendant/first appellant)
ROWEN MEYER & ASSOCIATES PTY LTD
ACN 055 454 012
(third defendant/second appellant)

FILE NO/S:

Appeal No 6134 of 2005
SC No 4250 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal - Further Order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Judgment delivered 10 March 2006
Further Order delivered  24 March 2006

DELIVERED AT:

Brisbane

HEARING DATE:

24 February 2006

JUDGES:

Williams and Keane JJA and McMurdo J
Judgment of the Court

ORDER: 

Appellant to pay the respondents' costs of and incidental to the appeal to be assessed on the standard basis

CATCHWORDS:

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - where Court of Appeal dismissed appeal from decision of learned trial judge - where respondents granted leave to make submission on disposition  of costs of the appeal in accordance with Practice Direction 26 of 1999 and Practice Direction 2 of 2004 - where respondents sought indemnity costs on the issue of causation and otherwise costs assessed on the standard basis - whether the circumstances demonstrate a sufficient basis to depart from the usual rules as to assessment of costs

Kendell v Kendell & Ors [2005] QCA 390; Appeal No 3004 of 2005, 21 October 2005, cited

COUNSEL:

P H Morrison QC, with S T Farrell, for the appellants
T Matthews, with M H Hindman, for the respondents

SOLICITORS:

Barry & Nilsson for the appellants
Dibbs Abbott Stillman for the respondents

1. THE COURT:  On 10 March 2006, the Court dismissed the appeal.  In accordance with paragraph 36A of Practice Direction 26 of 1999 and Practice Direction 2 of 2004, the respondents were given leave to make a submission in relation to the disposition of the costs of the appeal.

1. The respondents submit that the appellants should be ordered to pay the respondents' costs of and incidental to the appellants' proposed ground of appeal relating to causation, to be assessed on the indemnity basis; and that otherwise, the appellants should be ordered to pay the respondents' costs of the appeal on the standard basis.

1. The respondents contend that the conduct of the appellants in relation to the causation issue was so plainly unreasonable as to justify the unusual course of imposing an order for indemnity costs on the appellants.[1]

   [1]Cf Kendell v Kendell & Ors [2005] QCA 390 at [21] - [22].

1. The appellants notified the respondents of the appellants' intention to raise the causation issue as a ground of appeal by letter dated 31 August 2005 after the notice of appeal had been served.  Thereafter, both parties addressed the issue in their written submissions.  At the commencement of the hearing of the appeal, senior counsel for the appellants informed the Court and the respondents that the appellants did not intend to pursue the causation issue.

1. The Court does not consider that these circumstances demonstrate a sufficient basis to depart from the usual rule as to the basis on which costs are to be assessed.

1. The causation issue was not raised for the first time on appeal.  It was agitated at trial and addressed by the learned trial judge in his reasons.[2]

   [2][2005] QSC 197 at [30].

1. That the issue was not pressed at the hearing of the appeal is not demonstrative that the appellants' previous agitation of the issue was groundless; and this Court, in the absence of more detailed argument than has been presented, is certainly not in a position to conclude that the appellants' argument on causation was hopeless.

1. This Court is not disposed to encourage further argument in this regard because "the game is not worth the candle".  The agitation of the causation issue was not apt to have put the respondents to substantial extra costs attributable only to the causation issue; and it is not apparent that any injustice would be caused to the respondents by confining their recovery of the costs of the appeal to costs assessed on the standard basis.

Conclusion and orders

1. The Court does not consider that the respondents have demonstrated sufficient reason to vary the usual approach to the disposition of costs on appeal.

1. The Court orders that the appellants pay the respondents' costs of and incidental to the appeal to be assessed on the standard basis.