Mango Boulevard Pty Ltd v Spencer - [2008] QCA 392

SUPREME COURT OF QUEENSLAND

CITATION:

Mango Boulevard P/L v Spencer & Ors [2008] QCA 392

PARTIES:

MANGO BOULEVARD PTY LTD ACN 101 544 601
(plaintiff/first respondent)
v
RICHARD WILLIAM SPENCER
(first defendant/not a party to the appeal)
SILVANA PEROVICH
(second defendant/not a party to the appeal)
KINSELLA HEIGHTS DEVELOPMENTS PTY LTD ACN 100 373 368
(third defendant/not a party to the appeal)
MIO ART PTY LTD ACN 121 010 875
(fourth defendant/appellant)
PAUL DESMOND SWEENEY AND TERRY GRANT VAN DER VELDE AS TRUSTEES OF THE ESTATE OF RICHARD WILLIAM SPENCER
(fifth defendant/not a party to the appeal)
PAUL DESMOND SWEENEY AND TERRY GRANT VAN DER VELDE AS TRUSTEES OF THE ESTATE OF SILVANA PEROVICH
(sixth defendant/not a party to the appeal)

FILE NO/S:

Appeal No 3514 of 2008
SC No 1999 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

McMurdo P, Muir JA and Mackenzie J
Joint reasons for judgment of Muir JA and Mackenzie J; separate reasons of McMurdo P, concurring as to the order made

ORDER:

Appellant pay the respondent's costs of and incidental to the appeal, including any costs thrown away by amendments to the appellant's initial outline of argument, on the standard basis.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where the respondent was successful in the substantive appeal – where the respondent was given leave to argue that costs incurred by the respondent relating to the late amendment of the appellant’s case should be assessed on the indemnity basis – whether it is an appropriate case for costs to assessed on the indemnity basis

Mango Boulevard P/L v Spencer & Ors[2008] QCA 274, cited
Martinovic v Chief Executive, Queensland Transport [2005] 1 Qd R 502; [2005] QCA 055, considered
Colgate Palmolive v Cussons (1993) 46 FCR 225; [1993] FCA 536, considered

COUNSEL:

P J Davis SC, with D Keane, for the appellant
J K Bond SC, with T R Bradley, for the first respondent

SOLICITORS:

Boyd Legal for the appellant
Minter Ellison for the first respondent

McMURDO P: The substantive appeal in this matter, Mango Boulevard P/L v Spencer & Ors[1] was heard before Muir JA, Mackenzie AJA and Douglas J on 1 September 2008. On 12 September 2008, I formally delivered the judgment of the Court dismissing the appeal with costs. The respondent successfully applied before me to set aside the costs aspect of the order so as to permit it to deliver written submissions in support of its contention that it should have part of its costs of the appeal assessed on an indemnity basis. It filed written submissions in the registry to that effect later that day. The appellant has made submissions resisting the respondent's contentions.
[1][2008] QCA 274.

Since judgment in the substantive appeal was given,…

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.

Keep reading for free

Create a free CaseChat account to read Mango Boulevard Pty Ltd v Spencer and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] QCA 392
Decision Date: 5 December 2008

CaseChat Overview and Summary

Mango Boulevard Pty Ltd brought a case against Spencer in the court. The primary dispute centred on the assessment of costs incurred by the respondent due to a late amendment of the appellant’s case. The respondent successfully appealed the original decision and sought to have the costs associated with the late amendment assessed on an indemnity basis. The court had to determine whether it was appropriate to order the appellant to pay the respondent’s costs on an indemnity basis.

The court examined the circumstances under which costs might depart from the general rule of the losing party paying the winner’s costs on the standard basis. It considered the respondent's argument that the late amendment by the appellant necessitated additional work and resources, justifying an indemnity costs order. The court weighed the respondent's success in the substantive appeal against the appellant's failure to amend its case in a timely manner. It considered whether the appellant's delay caused the respondent undue hardship or expense, warranting an indemnity order.

The court concluded that while the respondent was successful in the appeal, the circumstances did not justify a departure from the general rule of costs on the standard basis. It found that the appellant’s late amendment did not significantly prejudice the respondent to the extent that an indemnity order was warranted. The court ordered the appellant to pay the respondent's costs of and incidental to the appeal, including any costs thrown away by amendments to the appellant's initial outline of argument, on the standard basis.

Orders

Orders of the court

Appellant pay the respondent's costs of and incidental to the appeal, including any costs thrown away by amendments to the appellant's initial outline of argument, on the standard basis.

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:	Mango Boulevard P/L v Spencer & Ors [2008] QCA 392
PARTIES:	MANGO BOULEVARD PTY LTD ACN 101 544 601 (plaintiff/first respondent) v RICHARD WILLIAM SPENCER (first defendant/not a party to the appeal) SILVANA PEROVICH (second defendant/not a party to the appeal) KINSELLA HEIGHTS DEVELOPMENTS PTY LTD ACN 100 373 368 (third defendant/not a party to the appeal) MIO ART PTY LTD ACN 121 010 875 (fourth defendant/appellant) PAUL DESMOND SWEENEY AND TERRY GRANT VAN DER VELDE AS TRUSTEES OF THE ESTATE OF RICHARD WILLIAM SPENCER (fifth defendant/not a party to the appeal) PAUL DESMOND SWEENEY AND TERRY GRANT VAN DER VELDE AS TRUSTEES OF THE ESTATE OF SILVANA PEROVICH (sixth defendant/not a party to the appeal)
FILE NO/S:	Appeal No 3514 of 2008 SC No 1999 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Orders
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	5 December 2008
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	McMurdo P, Muir JA and Mackenzie J Joint reasons for judgment of Muir JA and Mackenzie J; separate reasons of McMurdo P, concurring as to the order made
ORDER:	Appellant pay the respondent's costs of and incidental to the appeal, including any costs thrown away by amendments to the appellant's initial outline of argument, on the standard basis.
CATCHWORDS:	PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where the respondent was successful in the substantive appeal – where the respondent was given leave to argue that costs incurred by the respondent relating to the late amendment of the appellant’s case should be assessed on the indemnity basis – whether it is an appropriate case for costs to assessed on the indemnity basis Mango Boulevard P/L v Spencer & Ors[2008] QCA 274, cited Martinovic v Chief Executive, Queensland Transport [2005] 1 Qd R 502; [2005] QCA 055, considered Colgate Palmolive v Cussons (1993) 46 FCR 225; [1993] FCA 536, considered
COUNSEL:	P J Davis SC, with D Keane, for the appellant J K Bond SC, with T R Bradley, for the first respondent
SOLICITORS:	Boyd Legal for the appellant Minter Ellison for the first respondent