Nortask Pty Ltd v Rodriguez

[2009] QDC 323

DISTRICT COURT OF QUEENSLAND

CITATION:

Nortask Pty Ltd v Rodriguez [2009] QDC 323

PARTIES:

Nortask Pty Ltd (ACN 077 690 852) and Hermes Speziali

Applicants/Appellants

V

Manuel Rodriguez

Respondent

FILE NO/S:

Appeal 915 of 2009

DIVISION:

Appellate

PROCEEDING:

Appeal from Commercial and Consumer Tribunal

ORIGINATING COURT:

Commercial and Consumer Tribunal

DELIVERED ON:

20 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

14 October 2009, and subsequent written submissions received up to 15 October

JUDGE:

Alan Wilson SC, DCJ

ORDER:

That each party pay its own costs of and incidental to this appeal

CATCHWORDS:

COSTS – COSTS OF APPEAL – APPEAL AGAINST COSTS ORDER IN COMMERCIAL AND CONSUMER TRIBUNAL – APPEAL ALLOWED – where Tribunal found parties’ claims were self-cancelling, but awarded costs to respondent – where appellant’s appeal to this court successful – whether appellant should recover costs of appeal 

Commercial and Consumer Tribunal Act 2003 s 100, s 142
Uniform Civil Procedure Rules r 681, r 766

Case considered:
Tamawood Pty Ltd v Paans (2005) 2 Qd R 101

COUNSEL:

S J Armitage for appellant Nortask Pty Ltd, and Hermes Speziali
M A Jonsson for respondent Manuel Rodriguez

SOLICITORS:

Clifford Gouldson Lawyers for appellant, and Hermes Speziali
Miller Harris Lawyers for respondent

1. Under the judgment in this appeal handed down on 14 October 2009 the appellants obtained leave to appeal and their appeal was allowed.  A costs decision of the Commercial and Consumer Tribunal was set aside and it was ordered, instead, that each party bear its own costs of and incidental to the proceedings before the Tribunal.

1. Subsequently the parties delivered written submissions on the costs of the appeal itself. They agree that, despite s 100(8) of the Commercial and Consumer Tribunal Act 2003, this court retains a discretion as to the costs of the appeal (save and except for the limited category of items and outlays comprehended by that section). On appeal this court may make any order as to the whole or part of the costs of the appeal, as considered appropriate.[1]  The usual rule is, of course, that costs will follow the event unless the court orders otherwise.[2]

   [1]Uniform Civil Procedure Rules r 766(1).

   [2]Uniform Civil Procedure Rules r 681.

1. The appeal involved a preliminary application – that Mr Speziali be added as an appellant.  His absence from the original appeal notice was a consequence of an error on the part of his advisers and the costs associated with his addition should not, on any view, be sheeted home to the respondent.

1. As to the costs in the appeal proper, the appellants relied heavily upon s 142 of the Commercial and Consumer Tribunal Act 2003 but that reliance was, as the Reasons for judgment showed, misplaced. While they otherwise succeeded in their appeal to the extent that the costs order in the Tribunal has been set aside, the respondent also achieved a measure of success in resisting the imposition of an order that he pay the appellant’s costs of the Tribunal proceedings. I accept the respondent’s submission that this means each party achieved some measure of success here.

1. While it was necessary for the appellants to bring this appeal to change the outcome of the costs order made in the Tribunal and that necessity might, at first blush, be said to warrant an order now in their favour, that factor must be weighed in the balance with their mistaken reliance upon a statutory provision which, it transpired, did not assist them and the fact that the result in the primary action decided by the Tribunal was effectively a ‘tie’ – ie, the learned Member concluded, and the parties have accepted, that their respective claims exactly cancel each other out.

1. These factors in the case point to the conclusion that the correctness of, and the justice inherent in, the primary decision is best reflected in costs if they do not follow the usual rule but, rather, continue to reflect the outcome of the proceedings.   

1. The order concerning costs on the appeal will simply be that each party bear its own.