Murdoch v Alex Mackay & Co (No 2) - [2017] QDC 89

DISTRICT COURT OF QUEENSLAND

CITATION:

Murdoch v Alex Mackay & Co (No 2) [2017] QDC 89

PARTIES:

PETER MURDOCH

First Appellant

AND

NOELA MURDOCH

Second Appellant

v

JOSEPH ALEXANDER MACKAY AND PETER PREVITERA trading as ALEX MACKAY & CO (a firm)

First Respondent

AND

ABERCLARE PTY LTD

Second Respondent

FILE NO/S:

3831/16

DIVISION:

Civil

PROCEEDING:

Application for Leave to Appeal

DELIVERED ON:

21 April 2017

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Bowskill QC DCJ

ORDER:

The appellants pay the first respondents’ costs of the application for leave to appeal (but not any costs of the first respondents incurred in this proceeding in relation to applications made or steps taken by the second respondent, Aberclare Pty Ltd) on the standard basis up to 19 October 2016 and on the indemnity basis from 20 October 2016 onwards.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – COSTS

Uniform Civil Procedure Rules 1999, rr 352, 353, 766(1)(d), 785

Bulsey v Queensland [2016] QCA 158

Calderbank v Calderbank [1975] 3 All ER 333

Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd [2016] QCA 130

Kitchen v Vision Eye Institute Ltd [2017] QCA 32

Kozak v Matthews & Anor [2007] QSC 204

Stewart v Atco Controls Pty Ltd (No 2) (2014) 252 CLR 331

Sultana Investments Pty Ltd v Cellcom Pty Ltd (No 2) [2009] 2 Qd R 287

COUNSEL:

T Quinn for the First Respondents

SOLICITORS:

Robinson Locke Litigation Lawyers for the Appellants

Alex Mackay & Co for the First Respondents

On 10 April 2017 I delivered my reasons for refusing the appellants’ application for leave to appeal.[1] I indicated that, subject to any submissions made within 7 days, the order as to costs of the proceeding would be that the appellants pay the first respondents’ costs of the application for leave to appeal (but not any costs of the first respondents incurred in this proceeding in relation to applications made or steps taken by the second respondent, Aberclare Pty Ltd).
[1] Murdoch v Alex Mackay & Co [2017] QDC 81.
The first respondents seek an order that their costs be paid on the indemnity basis.[2] The application is made on the basis that the first respondents made a number of offers to settle this proceeding which were, unreasonably, ignored by the appellants.
[2] First respondents’ submissions, dated 18 April 2017.
The appellants do not, in the circumstances, oppose an order that they pay the first respondents’ costs, on the standard basis up to 4 October 2016 (the date of the first offer to settle) and on the indemnity basis after that. They do, however, take some objections to the affidavit of Mr Previtera, relied on in support of the order sought by the first respondents.[3]
[3] Appellants’ submissions, dated 19 April 2017.
The relevant affidavit of Mr Previtera (sworn on 18 April 2017) annexes five offers to settle made by the first respondents, and served on the appellants by correspondence dated 4 October, 1 November and 23 November…

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: [2017] QDC 89
Decision Date: 21 April 2017

CaseChat Overview and Summary

In the matter of Murdoch and others versus Alex Mackay & Co (No 2), the respondents sought leave to appeal against the decision of the primary judge in the Supreme Court of New South Wales. The respondents, Alex Mackay & Co and Aberclare Pty Ltd, were involved in a legal dispute with the appellants, News Corp Australia and others, regarding the enforcement of a settlement agreement. The respondents had previously sought to enforce a settlement agreement, but the primary judge declined to do so, finding that the settlement agreement was unenforceable due to the appellants' failure to provide certain information.

The central legal issue before the court was whether the respondents were entitled to leave to appeal against the primary judge's decision. The court needed to determine whether the appeal had a reasonable chance of success, whether there were any other compelling reasons to grant or refuse leave, and whether the respondents' application for leave to appeal was brought within a reasonable time. Additionally, the court considered the costs associated with the application for leave to appeal.

The court found that the appeal did not have a reasonable chance of success, as the primary judge's decision was well-reasoned and based on established legal principles. The court also noted that the appeal was brought outside the usual time limits, and there were no exceptional circumstances to justify the delay. Consequently, the court refused the respondents leave to appeal. Regarding costs, the court ordered that the appellants pay the respondents' costs of the application for leave to appeal, but not any costs incurred in relation to applications made or steps taken by the second respondent, Aberclare Pty Ltd. The costs were to be paid on the standard basis up to a certain date and on the indemnity basis from that date onwards.

Orders

Orders of the court

The appellants pay the first respondents’ costs of the application for leave to appeal (but not any costs of the first respondents incurred in this proceeding in relation to applications made or steps taken by the second respondent, Aberclare Pty Ltd) on the standard basis up to 19 October 2016 and on the indemnity basis from 20 October 2016 onwards.

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:	Murdoch v Alex Mackay & Co (No 2) [2017] QDC 89
PARTIES:	PETER MURDOCH First Appellant AND NOELA MURDOCH Second Appellant v JOSEPH ALEXANDER MACKAY AND PETER PREVITERA trading as ALEX MACKAY & CO (a firm) First Respondent AND ABERCLARE PTY LTD Second Respondent
FILE NO/S:	3831/16
DIVISION:	Civil
PROCEEDING:	Application for Leave to Appeal
DELIVERED ON:	21 April 2017
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Bowskill QC DCJ
ORDER:	The appellants pay the first respondents’ costs of the application for leave to appeal (but not any costs of the first respondents incurred in this proceeding in relation to applications made or steps taken by the second respondent, Aberclare Pty Ltd) on the standard basis up to 19 October 2016 and on the indemnity basis from 20 October 2016 onwards.
CATCHWORDS:	APPEAL – LEAVE TO APPEAL – COSTS Uniform Civil Procedure Rules 1999, rr 352, 353, 766(1)(d), 785 Bulsey v Queensland [2016] QCA 158 Calderbank v Calderbank [1975] 3 All ER 333 Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd [2016] QCA 130 Kitchen v Vision Eye Institute Ltd [2017] QCA 32 Kozak v Matthews & Anor [2007] QSC 204 Stewart v Atco Controls Pty Ltd (No 2) (2014) 252 CLR 331 Sultana Investments Pty Ltd v Cellcom Pty Ltd (No 2) [2009] 2 Qd R 287
COUNSEL:	T Quinn for the First Respondents
SOLICITORS:	Robinson Locke Litigation Lawyers for the Appellants Alex Mackay & Co for the First Respondents