Parmalat Australia Ltd and Anor v Norco Co-operative Ltd

[2006] QCA 204

SUPREME COURT OF QUEENSLAND

CITATION:

Parmalat Australia Ltd & Anor v Norco Co-operative Ltd
[2006] QCA 204

PARTIES:

PARMALAT AUSTRALIA LTD ACN 009 698 015
(first plaintiff/first appellant/first cross-respondent)
PAULS ICE CREAM & MILK PTY LTD ACN 009 661 732
(second plaintiff/second appellant/second cross-respondent)
v
NORCO CO-OPERATIVE LIMITED ARBN 009 717 417

(defendant/respondent/cross-appellant)

FILE NO/S:

Appeal No 2070 of 2006
SC No 777 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal - Further Order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Orders delivered 20 April 2006
Reasons delivered 21 April 2006
Further Order delivered 9 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

3 April 2006

JUDGES:

McMurdo P, Williams JA and Jerrard JA
Further Order of the Court

ORDER:

1.    That the respondent Norco Co-operative Limited pay the costs of the appellants, Parmalat Australia Ltd and Pauls Ice Cream & Milk Pty Ltd, of the appeal in Appeal No 2070 of 2006, to be assessed on the standard basis
2.    That there be no order as to the costs between those parties in the originating application heard below
3.    That order 1 made by this Court in this appeal on 20 April 2006 be varied by reinstating that part of the order made by the primary judge on 10 March 2006 that Pauls Trading Pty Ltd and Dairyfields Pty Ltd (formerly Dairyfields Limited) pay Norco Co-operative Limited's costs on the standard basis to be assessed

CATCHWORDS:

PROCEDURE – COSTS – RECOVERY OF COSTS – where Court granted leave to parties to deliver submissions in respect of costs of the appeal and the originating application below – whether respondent should pay appellants’ appeal costs assessed on the standard basis – whether there should be a costs order as between parties in relation to the originating application

COUNSEL:

K N Wilson SC, with D P de Jersey, for the appellants
H B Fraser QC, with T P Sullivan, for the respondent

SOLICITORS:

Biggs & Biggs Lawyers for the appellants
Clayton Utz for the respondent

1. THE COURT:  In this matter the Court gave leave to the parties to deliver costs submissions in respect of the costs of the appeal and originating application below.  Norco Co-operative Limited, the respondent, accepts that it should pay the appellants' costs of the appeal, to be assessed on the standard basis.  It submits there should be no order as to the costs in the proceedings under appeal, because while the appellants succeeded on appeal on the first matter the subject of dispute between the parties, they failed at first instance in respect of a second, significant matter and did not appeal the decision on that dispute.  Further, the appellants were not, strictly speaking, parties to the third matter in dispute in the proceedings under appeal; and there was no appeal regarding the order reflecting the outcome of that dispute.

1. The Court originally noted that the appellants had not filed submissions in this matter.  This was incorrect.  In fact the appellants filed and served their submissions on 2 May 2006; but, for as yet unascertained reasons, these submissions did not reach the judges.  The Court has now considered those submissions.  The appellants contend that the principal disputed issue at the hearing of the originating application was that taken on appeal and that the respondent should pay one-half of the appellants' costs of the originating application below.

1. We consider that in all the circumstances there should be no order as to the costs between the respondent and the appellants for the originating application below.

1. The respondent also submits that there should be no order in favour of Pauls Trading Pty Ltd or Dairyfields Pty Ltd, who were parties below, but who did not appeal the judgment, including the order therein for costs.  We agree with the respondent that in those circumstances the original costs order against those two parties should not be disturbed.

1. Accordingly, we would order:

1.          that the respondent Norco Co-operative Limited pay the costs of the appellants, Parmalat Australia Ltd and Pauls Ice Cream & Milk Pty Ltd, of the appeal in Appeal No 2070 of 2006, to be assessed on the standard basis;

2.          that there be no order as to the costs between those parties in the originating application heard below; and

3.          that order 1 made by this Court in this appeal on 20 April 2006 be varied by reinstating that part of the order made by the primary judge on 10 March 2006 that Pauls Trading Pty Ltd and Dairyfields Pty Ltd (formerly Dairyfields Limited) pay Norco Co-operative Limited's costs on the standard basis to be assessed.