SUPREME COURT OF QUEENSLAND
CITATION:
McBride v ASK Funding Ltd [2013] QCA 130
PARTIES:
PATRICIA ANN McBRIDE
(applicant)
v
ASK FUNDING LIMITED
ACN 094 503 385
(respondent)FILE NO/S:
Appeal No 11878 of 2012
DC No 2628 of 2009DIVISION:
Court of Appeal
PROCEEDING:
Application for Extension of Time/General Civil Appeal
ORIGINATING COURT:
District Court at BrisbaneDELIVERED ON:
28 May 2013
DELIVERED AT:
Brisbane
HEARING DATE:
13 May 2013
JUDGES:
Muir and Gotterson JJA and Jackson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. The application to extend time to file the notice of appeal is allowed.
2. Grant special leave to receive exhibits PA 4 and PA 18 to the affidavit of Patricia Anne filed on 10 May 2013 as further evidence on the hearing of the appeal.
Set aside the order of the District Court of Queensland dated 7 November 2012 that the defendant pay the plaintiff’s costs of and incidental to this matter on the indemnity basis.3.
In lieu thereof order that the defendant pay the plaintiff’s costs of the application and the proceeding.4.
The appeal is otherwise dismissed.5.
6. The appellant pay the respondent’s costs of the application and appeal.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – ADEQUACY OF REASONS – where judgment given by summary judgment – where primary judge gave brief reasons and did not refer to evidence – whether judge gave sufficient reasons
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where appellant sought to rely on affidavit –where appellant argued special grounds for admission of further evidence – where appellant alleged that judgment obtained by fraud and misconduct – whether whole or part of affidavit was admissible
PROCEDURE – COSTS – APPEALS AS TO COSTS – WRONG EXERCISE AS TO DISCRETION – where judgment is plainly no less favourable than the Calderbank offer made – where costs awarded on the indemnity basis – whether costs should be awarded on the standard basis
Acts Interpretation Act 1954 (Qld), s 27B
Evidence Act 1977 (Qld), s 59(2)
Uniform Civil Procedure Rules 1999 (Qld), r 210, r 214, r 225, r 292, r 360(1), r 440, r 766Aircraft Technicians of Australia Pty Ltd v St Clair; St Clair v Timtalla Pty Ltd[2011] QCA 188, cited
Balnaves v Smith [2012] QSC 408, applied
Calderbank v Calderbank [1975] 3 WLR 586, cited
Coldham-Fussell & Ors v Commissioner of Taxation (2011) 82 ACSR 439; [2011] QCA 45, cited
Commonwealth Bank of Australia v Quade (1991) 178 CLR 134; [1991] HCA 61, applied
Crystal Dawn Pty Ltd v Redruth Pty Ltd[1998] QCA 373, cited
IVI Pty Ltd v Baycrown Pty Ltd [2007]…
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- AGLC
- McBride v ASK Funding Ltd [2013] QCA 130
- Case
- [2013] QCA 130
- Decision Date
CaseChat Overview and Summary
The legal issues in this appeal were whether the primary judge had provided sufficient reasons for the decision, whether further evidence should be admitted, and whether the costs order was appropriate. The court found that the primary judge had provided adequate reasons for the decision, and that the appeal was not frivolous. The court also found that some of the further evidence should be admitted, and that the costs order should be set aside in favour of a standard costs order.
The court held that the primary judge had provided sufficient reasons for the decision, despite not referring to the evidence in detail. The court found that the reasons provided were adequate to allow the court to understand the basis of the decision. The court also found that some of the further evidence should be admitted, as it was relevant to the appeal and would assist the court in determining the appropriate costs order. Finally, the court found that the costs order should be set aside in favour of a standard costs order, as the judgment was not plainly more favourable than the Calderbank offer made by the defendant.
The court allowed the application to extend time to file the notice of appeal, and granted special leave to receive further evidence. The court set aside the costs order and ordered that the defendant pay the plaintiff's costs of the application and the proceeding. The appeal was otherwise dismissed, and the appellant was ordered to pay the respondent's costs of the application and appeal.
Orders
Orders of the court
1. The application to extend time to file the notice of appeal is allowed.
2. Grant special leave to receive exhibits PA 4 and PA 18 to the affidavit of Patricia Anne filed on 10 May 2013 as further evidence on the hearing of the appeal.
Set aside the order of the District Court of Queensland dated 7 November 2012 that the defendant pay the plaintiff’s costs of and incidental to this matter on the indemnity basis.3.
In lieu thereof order that the defendant pay the plaintiff’s costs of the application and the proceeding.4.
The appeal is otherwise dismissed.5.
6. The appellant pay the respondent’s costs of the application and appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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