McIntosh v Linke Nominees Pty Ltd - [2008] QCA 410

SUPREME COURT OF QUEENSLAND

CITATION:

McIntosh & Anor as T’ees of the Estate of Camm (A Bankrupt) v Linke Nominees P/L & Anor [2008] QCA 410

PARTIES:

LACHLAN MCINTOSH AND JOHN PARK as trustees
of the Estate of GARY STIRLING CAMM
(A BANKRUPT)
(plaintiff/respondents)
v
LINKE NOMINEES PTY LTD ACN 005 860 944
(first defendant/not a party to the appeal)
ROBERT CLIVE LINKE
(second defendant/appellant)

FILE NO/S:

Appeal No 4043 of 2008
Appeal No 4629 of 2008
SC No 4537 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Muir JA, Cullinane and Douglas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Respondents pay one-half of the appellant's costs at first instance, including reserved costs, if any, and the whole of the appellant's costs of the appeal.

CATCHWORDS:

PRACTICE – COSTS – PRACTICE MATTERS – TIME TO MAKE ORDERS – where the respondents’ made an application to vary the costs order of the substantive appeal – where r 667 Uniform Civil Procedure Rules 1999 (Qld) provides the time frame in which an order can be varied or set aside – where r 7(1) Uniform Civil Procedure Rules 1999 (Qld) permits the court to extend a time set under the rules or by order – whether the power to extend time under r 7(1) is restricted by the specific provision under r 667

PRACTICE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF ISSUES – where the appellant’s appeal was successful – where generally costs follow the event – where a substantial and disproportionate amount of time was consumed on the trial by the advancement by the appellant of unmeritorious issues – whether it is an appropriate case in which the appellant should pay the costs of the respondents in relation to an unmeritorious issue

Uniform Civil Procedure Rules 1999 (Qld), r 7(1), r 388, r 667

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9, considered
Attorney-General (NSW); ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd (1977) 2 NSWLR 955, considered
Cretazzo v Lombardi (1975) 13 SASR 4, cited
Cropper v Smith (1844) 26 Ch D 700, cited
Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40 – 748, cited
Interchase Corporation Limited (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 3) [2003] 1 Qd R 26; [2001] QCA 191, cited
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, cited
Plunkett v Smith (1911) 14 CLR 76; [1911] HCA 58, applied
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, cited

Rosniak v GIO (1997) 41 NSWLR 608, cited
Wentworth v NSW Bar Association (1992) 176 CLR…

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: [2008] QCA 410
Decision Date: 16 December 2008

CaseChat Overview and Summary

McIntosh was the appellant in the Court of Appeal in Queensland, contesting a costs order from a lower court. McIntosh's appeal against the original costs order was successful, but the respondents sought to vary the costs order, arguing it should be adjusted to account for the substantial time consumed in the trial due to unmeritorious issues advanced by McIntosh. The central issue before the court was whether the power to extend time under rule 7(1) of the Uniform Civil Procedure Rules 1999 (Qld) was constrained by the specific provision under rule 667, and whether it was appropriate for McIntosh to bear the costs of the respondents concerning the unmeritorious issues.

The court considered the interplay between rule 667, which sets the timeframe for varying or setting aside a costs order, and rule 7(1), which allows the court to extend the time set under the rules or by order. The court held that rule 7(1) did not restrict the power under rule 667, thereby allowing for the extension of time if necessary. Regarding the costs, the court found that while McIntosh's appeal was successful, a significant amount of trial time was consumed on unmeritorious issues. The court deemed it appropriate for McIntosh to bear the costs associated with these issues, as the advancement of such issues was deemed disproportionate and unjustified.

The court ordered that the respondents were to pay half of McIntosh's costs at first instance, including any reserved costs, and the full costs of the appeal. This decision balanced the successful outcome of McIntosh's appeal with the need to address the disproportionality of the trial's time consumption due to unmeritorious issues.

Orders

Orders of the court

Respondents pay one-half of the appellant's costs at first instance, including reserved costs, if any, and the whole of the appellant's costs of the 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:	McIntosh & Anor as T’ees of the Estate of Camm (A Bankrupt) v Linke Nominees P/L & Anor [2008] QCA 410
PARTIES:	LACHLAN MCINTOSH AND JOHN PARK as trustees of the Estate of GARY STIRLING CAMM (A BANKRUPT) (plaintiff/respondents) v LINKE NOMINEES PTY LTD ACN 005 860 944 (first defendant/not a party to the appeal) ROBERT CLIVE LINKE (second defendant/appellant)
FILE NO/S:	Appeal No 4043 of 2008 Appeal No 4629 of 2008 SC No 4537 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Orders
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	16 December 2008
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Muir JA, Cullinane and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Respondents pay one-half of the appellant's costs at first instance, including reserved costs, if any, and the whole of the appellant's costs of the appeal.
CATCHWORDS:	PRACTICE – COSTS – PRACTICE MATTERS – TIME TO MAKE ORDERS – where the respondents’ made an application to vary the costs order of the substantive appeal – where r 667 Uniform Civil Procedure Rules 1999 (Qld) provides the time frame in which an order can be varied or set aside – where r 7(1) Uniform Civil Procedure Rules 1999 (Qld) permits the court to extend a time set under the rules or by order – whether the power to extend time under r 7(1) is restricted by the specific provision under r 667 PRACTICE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF ISSUES – where the appellant’s appeal was successful – where generally costs follow the event – where a substantial and disproportionate amount of time was consumed on the trial by the advancement by the appellant of unmeritorious issues – whether it is an appropriate case in which the appellant should pay the costs of the respondents in relation to an unmeritorious issue Uniform Civil Procedure Rules 1999 (Qld), r 7(1), r 388, r 667 Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9, considered Attorney-General (NSW); ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd (1977) 2 NSWLR 955, considered Cretazzo v Lombardi (1975) 13 SASR 4, cited Cropper v Smith (1844) 26 Ch D 700, cited Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40 – 748, cited Interchase Corporation Limited (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 3) [2003] 1 Qd R 26; [2001] QCA 191, cited Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, cited Plunkett v Smith (1911) 14 CLR 76; [1911] HCA 58, applied Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, cited Rosniak v GIO (1997) 41 NSWLR 608, cited Wentworth v NSW Bar Association (1992) 176 CLR…