Orchid Avenue Realty Pty Ltd v Makings Custodian Pty Ltd

[2018] QCA 129

SUPREME COURT OF QUEENSLAND

CITATION:

Orchid Avenue Realty Pty Ltd v Makings Custodian Pty Ltd & Ors [2018] QCA 129

PARTIES:

ORCHID AVENUE REALTY PTY LTD
ACN 093 431 595
(appellant)
v
MAKINGS CUSTODIAN PTY LTD
ACN 139 197 130
(first respondent)
MAKINGS PTY LTD
ACN 120 563 260
(second respondent)
STEPHEN GUY SOLOMONS
(third respondent)
DUNCAN IAN ROBERT McINNES
(fourth respondent)
CBRE (C) PTY LIMITED
ACN 003 205 552
(fifth respondent)

FILE NO/S:

Appeal No 6050 of 2017
SC No 7764 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

Supreme Court at Brisbane – [2017] QSC 80

DELIVERED ON:

19 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Gotterson and Morrison JJA and Henry J

ORDERS:

1.   An indemnity certificate be granted to the first respondent and the second respondent together, limited to 20 per cent of the costs and expenses jointly incurred by them in respect of this appeal.

2.   The first respondent and the second respondent are directed to lodge with the Registrar a draft indemnity certificate conforming to these reasons within seven days of today’s date.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – RECOVERY OF COSTS – OUT OF FUND – where the appellant in this appeal succeeded on a question of law – where the majority of the time and expense in this appeal went towards litigating grounds of appeal which did not turn upon questions of law –where the applicants, as respondents in this appeal, applied for an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) – whether an indemnity certificate should be granted to the applicants in respect of all or part of their costs of this appeal

Appeal Costs Fund Act 1973 (Qld), s 15

COUNSEL:

R P Perry QC for the appellant
P Roney QC, with J Green, for the first and second respondents
The third respondent appeared on his own behalf
The fourth respondent appeared on his own behalf
M Steele for the fifth respondent

SOLICITORS:

Carter Newell Lawyers for the appellant
Ramsden Lawyers for the first and second respondents
The third respondent appeared on his own behalf
The fourth respondent appeared on his own behalf
Kennedy’s Lawyers for the fifth respondent

1. THE COURT:  Judgment in this appeal was given on 9 March 2018.  At the same time, judgment was given in a related appeal (No. 6008 of 2017) which was heard over two days with this appeal.  In the former, Makings Custodian Pty Ltd and Makings Pty Ltd (“the applicants”) were first and second respondents.  In the latter, they were first and second appellants.  In consequence of orders then made, the applicants do not have a costs order in their favour or a costs order against them in either appeal.

2. After judgment in the appeals was delivered, each of the applicants made an application within time for an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) in respect of this appeal. The application could only relate to their own costs of the appeal since they were not ordered to pay costs of any other party to the appeal.

3. The applicants note, correctly, that in this appeal, the appellant relied on some 24 grounds of appeal but succeeded on only one of them. That ground concerned the construction and application of s 87CB of the Trade Practices Act 1974 (Cth) and its analogue in Queensland legislation. The construction issue was not clear-cut. It raised a question as to whether and, if so how, an earlier judgment of this Court was binding precedent for the learned primary judge who tried these proceedings.

4. This Court resolved the construction issue in favour of the appellant in this appeal. Its appeal therefore succeeded on a question of law. The jurisdiction to grant an indemnity certificate under s 15 to the applicants as respondents to this appeal, is thereby enlivened.

5. This is not, however, a case in which the applicants ought to be granted an indemnity certificate in respect of all their costs of this appeal. Not only was it heard with another for which no entitlement to an indemnity certificate can arise; but also, by far the majority of the time and expense in this appeal went towards litigating other discrete grounds of appeal which did not turn upon questions of law for the purposes of s 15.

6. In these circumstances, it is appropriate that one certificate be granted to both applicants for 20 per cent of the costs jointly incurred by them in respect of this appeal.

7. The orders of the court are:

   1.An indemnity certificate be granted to the first respondent and the second respondent together, limited to 20 per cent of the costs and expenses jointly incurred by them in respect of this appeal.

   2.The first respondent and the second respondent are directed to lodge with the Registrar a draft indemnity certificate conforming to these reasons within seven days of today’s date.