Palmer v Parbery

[2018] QCA 268

SUPREME COURT OF QUEENSLAND

CITATION:

Palmer v Parbery & Ors [2018] QCA 268

PARTIES:

CLIVE FREDERICK PALMER

(applicant)

v

STEPHEN JAMES PARBERY AND MICHAEL ANDREW OWEN IN THEIR CAPACITIES AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (IN LIQ)

ACN 009 842 068

(first respondent)

QUEENSLAND NICKEL PTY LTD (IN LIQ)

ACN 009 842 068

(second respondent)

JOHN RICHARD PARK, KELLY-ANNE LAVINA TRENFIELD & QUENTIN JAMES OLDE AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (IN LIQUIDATION)

ACN 009 842 068

(third respondent)

FILE NO/S:

Appeal No 8282 of 2018

SC No 6593 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

Supreme Court at Brisbane – [2018] QSC 176; [2018] QSC 178 (Bond J)

DELIVERED ON:

12 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Morrison JA

ORDER:

The applicant is to pay the respondents’ costs of and incidental to the application to be assessed on the indemnity basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS – COSTS – INDEMNITY COSTS – RELEVANT CONSIDERATIONS

GENERALLY – where the applicant filed an application seeking to stay proceedings in the Supreme Court pending the determination of an appeal from directions made in those proceedings – where the application was withdrawn the day prior to the hearing with no explanation – whether costs ought to assessed on the indemnity basis

Uniform Civil Procedure Rules 1999 (Qld), r 681

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 536, cited

Ghougassian v Fairfax Community Newspapers Pty Ltd
[2015] NSWCA 307, applied

Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 62; [1997] HCA 6, considered

Segal v Commonwealth Bank of Australia [2016] NSWCA 90, cited

COUNSEL:

K S Byrne for the applicant A G Rae for the respondents

SOLICITORS:

Alexander Law for the applicant

King & Wood Mallesons for the respondents

1. MORRISON JA: The respondents to the appeal in CA No 8282 of 2018 seek an order that the appellant pay their costs of an application on the indemnity basis instead of the usual standard basis.

Background and summary

1. On 27 July 2018 the learned primary judge made case management directions in the principal proceedings (No. 6593 of 2017). The directions made that day included orders setting down the proceeding for trial commencing in April 2019. I will return to the orders in greater detail later.

1. On 31 July 2018 Mr Palmer, as well as all other defendants to the main proceeding, filed a notice of appeal against those directions. Subsequently, on 30 August 2018, an order was made which had the effect of removing all appellants other than      Mr Palmer from the appeal.

2. On 2 August 2018 an application was filed seeking that certain of the orders made on 27 July 2018 be stayed pending determination of the appeal. An affidavit was filed to support that application.

3. After the order removing all but Mr Palmer as appellants,…