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 2) [2009] 2 Qd R 287; [2008] QCA 398, followed

COUNSEL:

No appearance for the appellant, the appellant’s submissions were heard on the papers
No appearance for the respondent, the respondent’s submissions were heard on the papers

SOLICITORS:

Norton White for the appellant
Cleary & Lee for the respondents

1. THE COURT:  The respondents were unsuccessful in five appeals, heard together, which raised relevantly identical issues.  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 statement in respect of a Supreme Court trial in which the respondents had succeeded against the appellant.  In an application before a registrar in Cairns, the respondents sought the appointment of Mr Neville Hiscox as assessor.  The registrar appointed an assessor other than Mr Hiscox.  The solicitors for the respondent requested that the registrar provide written reasons for her decision.  She declined to do so.  It was conceded by the appellant’s solicitors that erroneous allegations had been made about the appropriateness of Mr Hiscox’s appointment in submissions to the registrar before she notified the parties of her decision.

1. The respondents applied to the primary judge to have the application to the registrar reheard under r 791 of the Uniform Civil Procedure Rules 1999 (Qld). The primary judge set aside the registrar’s order and appointed Mr Hiscox to assess the costs. The appellant applied to the primary judge, unsuccessfully, for leave to appeal against the primary judge’s orders. The appellant then appealed to this Court which held that the primary judge had erred in law, causing the exercise of his discretion to miscarry. Mr Walter, the costs assessor with the lowest hourly charge out rate, was appointed assessor. This Court’s determination was made in the absence of any evidence as to the availability of Mr Hiscox or any other costs assessor to promptly undertake the assessment. Regrettably, this Court was also not informed of the work already undertaken by Mr Hiscox. He had continued to assess the costs. On 17 December 2013, the solicitors for the appellant wrote to him submitting that it was inappropriate for him to proceed with the assessment while his appointment as costs assessor was the subject of an appeal to this Court. The solicitors for the respondents took issue with the submission, stating their opinion that it was up to Mr Hiscox whether or not he proceeded with the assessments. He proceeded and, in a letter to the solicitors for the parties dated 11 April 2014, advised that his fees to that date were $13,794.

1. The error that this Court found in the primary judge’s reasons was one contributed to by the respondents’ submissions.  That is not fatal for the success of an application for an indemnity certificate as long as the argument advanced was fairly arguable.[1]  It was.  There is the added consideration that the respondents’ successful challenge before the primary judge was aided by the erroneous submissions to the registrar on behalf of the appellant referred to above.

   [1]Sultana Investments Pty Ltd v Cellcom Pty Ltd (No 2) [2008] QCA 398 at [21]–[22].

1. Precisely what is sought to be included in the indemnity certificate for which the respondents apply is not entirely clear from the respondents’ written submissions.  They relevantly state:

“The respondents concede that an indemnity certificate to cover only Mr Hiscox fees would not be recovered by section 16 of Appeal Costs Fund Act 1973 (Qld) but do seek an indemnity certificate in respect of the appellant’s costs of the appeal.”

1. If that is intended as a concession that an indemnity certificate not indemnify the respondents against Mr Hiscox’s fees, it is well made. Those fees would not fall within s 16(1) of the Appeal Costs Fund Act 1973 (Qld) (the Act). Moreover, such fees, or at least a significant part of them, were unnecessarily incurred through the respondents’ own acts or omissions and should not be a burden on the fund. The application was made outside the time prescribed by paragraph 29 of Practice Direction 3 of 2013. However, in the circumstances identified in the respondents’ written submissions, this Court is prepared to entertain the application out of time.

1. It is ordered 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.