Pazese Pty Ltd v Sciacca and Shaw

[1999] QCA 455

SUPREME COURT OF QUEENSLAND

CITATION:

Pazese Pty Ltd  v Sciacca and Shaw  [1999] QCA 455

PARTIES:

PAZESE PTY LTD ACN 010 778 505

(Plaintiff/Respondent)

and

SCIACCA AND SHAW (a firm)

(Defendant/Appellant)

FILE NO/S:

Appeal No 11977 of 1998

SC Writ No 7 of 1994

DIVISION:

Court of Appeal

PROCEEDING:

Appeal

ORIGINATING COURT:

Supreme Court of Queensland at Cairns

DELIVERED ON:

Judgment on 5 November 1999

Further Order of the court on 10 December 1999

DELIVERED AT:

Brisbane

HEARING DATE:

6 August 1999

JUDGES:

McPherson JA, Thomas JA, Helman J

FURTHER ORDER:

The defendant pay the plaintiff’s costs of the action including reserved costs on the District Court scale appropriate to the amount recovered.

The respondent pay one half of the appellant’s costs of the appeal to be assessed.

COUNSEL:

Mr  P McMurdo QC for the appellant

Mr C Carrigan for the respondent

SOLICITORS:

Miller Harris & Co for the appellant

Gayler Cleland Towne for the respondent

1. McPHERSON JA:  I agree with the orders proposed by Thomas JA and Helman J for disposing of the costs of the appeal and of the action.

1. THOMAS JA & HELMAN J:  There were unsatisfactory features in the presentation of the case below, including failure to refer the court to the relevant authority of Kizbeau.  This was a dominant factor in the result miscarrying.  It is not a case where fault on the part of the court or the system requires the appeal costs fund to be held responsible for correcting the situation.

1. As each party contributed to the unsatisfactory result below and to the corresponding need for appeal, there should be some limitation of costs of the appeal.  We would therefore propose the following orders:

(a)    The defendant pay the plaintiff's costs of the action including reserved costs on the District Court scale appropriate to the amount recovered.

(b)   The respondent pay one half of the appellant's costs of the appeal to be assessed.