Primavera Holdings Pty Ltd v Golding

[2018] ACTCA 30

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Primavera Holdings Pty Ltd v Golding

Citation:

[2018] ACTCA 30

Hearing Date:

1 August 2018

DecisionDate:

16 August 2018

Before:

Loukas-Karlsson J

Decision:

The applicant is to pay the respondent’s costs of this matter as agreed or as assessed.

Catchwords:

APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – Costs of hearing application for leave to appeal out of time – Application withdrawn

Legislation Cited:

Court Procedures Rules 2006 (ACT) rr 5471, 1721
Supreme Court Act 1993 (ACT) s 37J(b)

Cases Cited:

Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8

Parties:

Primavera Holdings Pty Ltd (Applicant)

Allan Golding (First Respondent)

Eveleen Golding (Second Respondent)

Representation:

Counsel

Self-represented (Applicant)

Mr J Larkings (Respondents)

File Number:

ACTCA 30 of 2018

Decision under appeal: 

Court/Tribunal:             ACT Supreme Court

Before:  McWilliam AsJ

Date of Decision:          4 May 2018

Case Title:  Golding v Primavera Holdings Pty Ltd

Citation: [2018] ACTSC 118

Loukas-Karlsson J

1. This matter comes before me as the Court of Appeal constituted by a single judge, pursuant to s 37J(b) of the Supreme Court Act 1993 (ACT).

1. The matter concerns an application for leave to appeal out of time. The application was made by the applicant, Primavera Holdings Pty Ltd, on 5 June 2018. The application was accompanied by an affidavit of Ms Maria de Lurdes Martins, the director of the plaintiff, setting out the reasons for the application being made out of time.

1. The matter was listed for directions hearing on 18 July 2018. On 16 July 2018, the applicant withdrew the application for leave to appeal out of time and requested to vacate the directions hearing on 18 July 2018. The directions hearing was vacated.

1. The respondents seek an order that the applicant pay the respondents’ costs of the application for leave to appeal out of time.

1. The issue to be decided by me on this occasion is that of costs of the proceedings relevant to the application for leave to appeal out of time.

1. Ordinarily costs follow the event. In Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8 (Clarkson), Penfold, Burns and Rangiah JJ noted at [9]:

Ordinarily, costs follow the event: Oshlack v Richmond River Council (1998) 193 CLR 71 at [67] (McHugh J) and [120]-[122] (Kirby J). However, the Rules themselves recognise that the circumstances of the case may make it appropriate to depart from the usual rule. Rule 1705(1) provides, “The court may make an order for costs in relation to a particular issue in, or a particular part of, a proceeding”.

1. The Court in Clarkson further noted that there is a broad discretion and that discretion must be exercised having regard to the individual case. Penfold, Burns and Rangiah JJ continued at [12]:

[…] the Court has a broad discretion, and the discretion must be exercised having regard to the particular circumstances of the particular case. Ultimately, the Court is required to determine the appropriate order in the interests of justice.

1. There is a question as to whether costs are available under r 5471 of the Court Procedures Rules 2006 (ACT) in relation to appeals as set out in sub-sections (5) and (6) or under r 1721(1) of the Court Procedures Rules 2006 (ACT).

1. Mr Larkins for the respondents argued that the position was uncertain as to whether costs ought to be ordered under r 5471 or r 1721, the question being whether an application for leave to appeal out of time is an appeal for the purposes of r 5471.

1. Rule 5471 relevantly provides as follows:

5471 Appeals to Court of Appeal—discontinuance of appeal

(5)If the appeal or a part of the appeal is discontinued in a civil proceeding, the appellant must pay the costs of the other parties caused by the appeal or part of the appeal discontinued, unless the Court of Appeal otherwise orders.

(6)The Court of Appeal may make an order under subrule (5) on application by a party to the appeal or on its own initiative.

1. Rule 1721(1) provides:

1721 Costs—general rule

(1)The costs of a proceeding or of an application in a proceeding are in the discretion of the court.

1. Approaching the rules as a matter of strict statutory construction I consider that the relevant rule in the circumstances of this case is r 1721. For the purposes of this application, this question need not be definitively determined as costs are available under either provision.

1. As noted above, the application for leave to appeal was withdrawn on 16 July 2018 and therefore close to the hearing date of 18 July 2018. The respondents have incurred costs in relation to the preparation for the directions hearing on 18 July 2018. The only question before the court is the question of costs in relation to the withdrawal of the application to appeal. No relevant reason has been advanced to depart from the usual course in this case. In the exercise of my discretion, I find that the respondents are therefore entitled to a costs order.

1. The applicant is to pay the respondents’ costs of this matter as agreed or as assessed.

I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson

Associate:

Date: 16 August 2018