Lessbrook Pty Ltd (in liq) v Whap - [2014] QCA 196

SUPREME COURT OF QUEENSLAND

CITATION:

Lessbrook Pty Ltd (in liq) v Whap; Stephen; Bowie; Kepa & Kepa [2014] QCA 196

PARTIES:

In Appeal No 9231 of 2013:
LESSBROOK PTY LTD (in liquidation)
ACN 010 855 875
(appellant)
v
MIMIA WHAP FOR THE ESTATE & DEPENDANTS OF HELENA WOOSUP (DECEASED)
(respondent)

In Appeal No 9233 of 2013:
LESSBROOK PTY LTD (in liquidation)
ACN 010 855 875
(appellant)
v
ELIZABETH STEPHEN FOR THE ESTATE & DEPENDANTS OF GORDON KRIS (DECEASED)
(respondent)

In Appeal No 9234 of 2013:
LESSBROOK PTY LTD (in liquidation)
ACN 010 855 875
(appellant)
v
FRANCIS BOWIE FOR THE ESTATE & DEPENDANTS OF MARDIE BOWIE (DECEASED)
(respondent)

In Appeal No 9236 of 2013:
LESSBROOK PTY LTD (in liquidation)
ACN 010 855 875
(appellant)
v
FLORENCE KEPA FOR THE ESTATE & DEPENDANTS OF FRED BOWIE (DECEASED)
(respondent)

In Appeal No 9237 of 2013:
LESSBROOK PTY LTD (in liquidation)
ACN 010 855 875
(appellant)
v
EMILY KEPA FOR THE ESTATE AND DEPENDANTS OF FRANK BILLY (DECEASED)
(respondent)

FILE NOS:

Appeal No 9231 of 2013
Appeal No 9233 of 2013
Appeal No 9234 of 2013
Appeal No 9236 of 2013
Appeal No 9237 of 2013
SC No 194 of 2007
SC No 195 of 2007
SC No 193 of 2007
SC No 192 of 2007
SC No 191 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

15 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

4 March 2014

JUDGES:

Muir and Gotterson JJA and Daubney J
Judgment of the Court

ORDER:

In respect of each appeal that the respondents be granted a certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) with respect to the costs ordered to be paid to the appellant and with respect to the respondents’ own costs of each appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the respondents were unsuccessful in five appeals, heard together, which raised relevantly identical issues – where in each matter there was a dispute between the appellant and the respondents over the identity of the costs assessor who should be appointed to assess the respondents’ costs – where the costs assessor appointed by the primary judge continued to assess the costs while his appointment was the subject of an appeal to this Court – where the appeal was allowed and this Court appointed a different assessor – whether the respondents should be granted a certificate pursuant to s 16 of the Appeal Costs Fund Act 1973 (Qld) with respect to the costs ordered to be paid to the appellant and with respect to the respondents’ own costs of each appeal

Appeal Costs Fund Act 1973 (Qld), s 16
Uniform Civil Procedure Rules 1999 (Qld), r 791

Lessbrook Pty Ltd (in liq) v Whap; Stephen; Bowie; Kepa & Kepa[2014] QCA 63, considered
Sultana Investments Pty Ltd v Cellcom Pty Ltd (No…

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.

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Details

Case: [2014] QCA 196
Decision Date: 15 August 2014

CaseChat Overview and Summary

Lessbrook Pty Ltd (in liquidation) was the appellant in a series of appeals against Whap, the respondents, heard together in the Court of Appeal of the Supreme Court of Queensland. The central issue in each appeal was the identity of the costs assessor to be appointed for the assessment of the respondents’ costs. Despite the primary judge's appointment of a costs assessor, the appointment was challenged by the respondents. The Court of Appeal allowed the appeals, appointing a different assessor. The respondents sought a certificate under section 16 of the Appeal Costs Fund Act 1973 (Qld) concerning the costs ordered to be paid to the appellant and the respondents' own costs in each appeal.

The court had to decide whether the respondents should be granted a certificate under the Appeal Costs Fund Act, which would entitle them to receive costs from the Appeal Costs Fund. The respondents argued that despite being unsuccessful in their appeals, they should still be granted the certificate because the issues raised in each appeal were identical, and the Court of Appeal had allowed their appeals on the basis of the costs assessor's appointment. They contended that they should not be penalised for the unsuccessful appeals when the fundamental issue was the procedural matter of the costs assessor's appointment.

The Court of Appeal found that the respondents were entitled to the certificate. The court reasoned that the appeals were effectively about the procedural issue of the costs assessor's appointment, which was a matter of law. Even though the respondents were unsuccessful in their appeals, the fact that the Court of Appeal allowed the appeals on the basis of the procedural issue meant that the respondents should not be penalised for the unsuccessful outcomes. The court held that the respondents' entitlement to the certificate was justified because the appeals were essentially about the procedural issue, not the substantive merits of the case. The court allowed the appeals and granted the respondents a certificate under section 15 of the Appeal Costs Fund Act, covering the costs ordered to be paid to the appellant and the respondents' own costs of each appeal.

Orders

Orders of the court

In respect of each appeal that the respondents be granted a certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) with respect to the costs ordered to be paid to the appellant and with respect to the respondents’ own costs of each appeal.

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:	Lessbrook Pty Ltd (in liq) v Whap; Stephen; Bowie; Kepa & Kepa [2014] QCA 196
PARTIES:	In Appeal No 9231 of 2013: LESSBROOK PTY LTD (in liquidation) ACN 010 855 875 (appellant) v MIMIA WHAP FOR THE ESTATE & DEPENDANTS OF HELENA WOOSUP (DECEASED) (respondent) In Appeal No 9233 of 2013: LESSBROOK PTY LTD (in liquidation) ACN 010 855 875 (appellant) v ELIZABETH STEPHEN FOR THE ESTATE & DEPENDANTS OF GORDON KRIS (DECEASED) (respondent) In Appeal No 9234 of 2013: LESSBROOK PTY LTD (in liquidation) ACN 010 855 875 (appellant) v FRANCIS BOWIE FOR THE ESTATE & DEPENDANTS OF MARDIE BOWIE (DECEASED) (respondent) In Appeal No 9236 of 2013: LESSBROOK PTY LTD (in liquidation) ACN 010 855 875 (appellant) v FLORENCE KEPA FOR THE ESTATE & DEPENDANTS OF FRED BOWIE (DECEASED) (respondent) In Appeal No 9237 of 2013: LESSBROOK PTY LTD (in liquidation) ACN 010 855 875 (appellant) v EMILY KEPA FOR THE ESTATE AND DEPENDANTS OF FRANK BILLY (DECEASED) (respondent)
FILE NOS:	Appeal No 9231 of 2013 Appeal No 9233 of 2013 Appeal No 9234 of 2013 Appeal No 9236 of 2013 Appeal No 9237 of 2013 SC No 194 of 2007 SC No 195 of 2007 SC No 193 of 2007 SC No 192 of 2007 SC No 191 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Orders
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	15 August 2014
DELIVERED AT:	Brisbane
HEARING DATE:	4 March 2014
JUDGES:	Muir and Gotterson JJA and Daubney J Judgment of the Court
ORDER:	In respect of each appeal that the respondents be granted a certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) with respect to the costs ordered to be paid to the appellant and with respect to the respondents’ own costs of each appeal.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the respondents were unsuccessful in five appeals, heard together, which raised relevantly identical issues – where in each matter there was a dispute between the appellant and the respondents over the identity of the costs assessor who should be appointed to assess the respondents’ costs – where the costs assessor appointed by the primary judge continued to assess the costs while his appointment was the subject of an appeal to this Court – where the appeal was allowed and this Court appointed a different assessor – whether the respondents should be granted a certificate pursuant to s 16 of the Appeal Costs Fund Act 1973 (Qld) with respect to the costs ordered to be paid to the appellant and with respect to the respondents’ own costs of each appeal Appeal Costs Fund Act 1973 (Qld), s 16 Uniform Civil Procedure Rules 1999 (Qld), r 791 Lessbrook Pty Ltd (in liq) v Whap; Stephen; Bowie; Kepa & Kepa[2014] QCA 63, considered Sultana Investments Pty Ltd v Cellcom Pty Ltd (No…