QNI Metals Pty Ltd v Parbery - [2018] QCA 324

SUPREME COURT OF QUEENSLAND

CITATION:

QNI Metals Pty Ltd & Ors v Parbery & Ors [2018] QCA 324

PARTIES:

QNI METALS PTY LTD
ACN 066 656 175
(first appellant)
QNI RESOURCES PTY LTD
ACN 054 117 921
(second appellant)
MINERALOGY PTY LTD
ACN 010 582 680
(third appellant)
PALMER LEISURE AUSTRALIA PTY LTD
ACN 152 386 617
(fourth appellant)
PALMER LEISURE COOLUM PTY LTD
ACN 146 828 122
(fifth appellant)
FAIRWAY COAL PTY LTD
ACN 127 220 642
(sixth appellant)
CART PROVIDER PTY LTD
ACN 119 455 837
(seventh appellant)
COEUR DE LION INVESTMENTS PTY LIMITED
ACN 006 334 872
(eighth appellant)
COEUR DE LION HOLDINGS PTY LTD
ACN 003 209 934
(ninth appellant)
CLOSERIDGE PTY LTD
ACN 114 165 669
(tenth appellant)
WARATAH COAL PTY LTD
ACN 114 165 669
(eleventh appellant)
v
STEPHEN JAMES PARBERRY AND MICHAEL OWEN IN THEIR CAPACITIES AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (CONTROLLER APPOINTED) (IN LIQ)
ACN 009 842 068
(first respondent)
QUEENSLAND NICKEL PTY LTD (CONTROLLER APPOINTED) (IN LIQ)
ACN 009 842 068
(second respondent)

FILE NO/S:

Appeal No 6561 of 2018
SC No 6593 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Application for Stay of Execution – Further Orders

ORIGINATING COURT:

Supreme Court at Brisbane – [2018] QSC 125 (Bond J)

DELIVERED ON:

20 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Gotterson JA

ORDERS:

The appellants are to pay the respondents’ costs of the stay application as follows:

1. For costs incurred up to and including 26 June 2018, on the standard basis.

2. For costs incurred after 26 June 2018, on the indemnity basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellants’ application for a stay of certain orders in a suite of freezing orders was discontinued and dismissed – where an analogous application by a separate appellant had earlier been dismissed – where notification of the discontinuance of the application was very late – whether the appellants should pay the respondents’ costs on the indemnity basis

Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 536, cited
QNI Metals Pty Ltd & Ors v Parbery & Owen in their Capacities as Liquidators of Queensland Nickel Pty Ltd (Controller Appointed) (In Liq) & Anor[2018] QCA 139, considered

COUNSEL:

S M Iskander (sol) for the appellant
G Gibson QC, with A Rae, for the respondent

SOLICITORS:

Alexander Law for the appellant
King & Wood Mallesons for the respondent

GOTTERSON JA: The appellants’ application for a stay of certain orders was discontinued by them and dismissed by consent by order made by me on 7 August 2018. That order made provision for the parties to make short written submissions on costs which they have done.
It is common ground that the appellants should pay the respondents’ costs of the stay application. However, they are in disagreement as to whether the appellants should do so on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] QCA 324
Decision Date: 20 November 2018

CaseChat Overview and Summary

The case of QNI Metals Pty Ltd v Parbery involved an appeal and new trial application in Queensland. The central dispute was whether the appellants should be ordered to pay the respondents' costs on an indemnity basis following the late discontinuance of an application to stay certain orders in a suite of freezing orders. The matter was heard and determined in the Supreme Court of Queensland. The court had to decide the appropriate legal principles to apply in determining whether the appellants should bear the respondents' costs, and if so, the extent of those costs.

The key legal issue before the court was whether the appellants' delay in notifying the respondents of the discontinuance of their stay application warranted an order for costs on an indemnity basis. The court had to consider the principles applicable to awarding costs on an indemnity basis, particularly in the context of procedural delays. It had to assess the degree of fault attributable to the appellants and the impact of the delay on the proceedings and the respondents.

The court found that the appellants' delay in notifying the respondents of the discontinuance was significant and warranted an order for costs on an indemnity basis. The court reasoned that the appellants' failure to promptly notify the respondents not only caused delay but also impacted the respondents' ability to manage their legal costs effectively. The court held that the appellants' delay was not merely trivial or minor but amounted to a significant lapse that justified an indemnity costs order. The court ordered that the appellants pay the respondents' costs up to and including 26 June 2018 on the standard basis, and for costs incurred after this date, on the indemnity basis.

The final orders of the court were that the appellants were to pay the respondents' costs of the stay application, with costs up to and including 26 June 2018 assessed on the standard basis, and costs incurred after this date assessed on the indemnity basis. This decision underscores the court's stance on the importance of timely communication in legal proceedings and the potential consequences of failing to meet procedural obligations.

Orders

Orders of the court

The appellants are to pay the respondents’ costs of the stay application as follows:

1. For costs incurred up to and including 26 June 2018, on the standard basis.

2. For costs incurred after 26 June 2018, on the indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	QNI Metals Pty Ltd & Ors v Parbery & Ors [2018] QCA 324
PARTIES:	QNI METALS PTY LTD ACN 066 656 175 (first appellant) QNI RESOURCES PTY LTD ACN 054 117 921 (second appellant) MINERALOGY PTY LTD ACN 010 582 680 (third appellant) PALMER LEISURE AUSTRALIA PTY LTD ACN 152 386 617 (fourth appellant) PALMER LEISURE COOLUM PTY LTD ACN 146 828 122 (fifth appellant) FAIRWAY COAL PTY LTD ACN 127 220 642 (sixth appellant) CART PROVIDER PTY LTD ACN 119 455 837 (seventh appellant) COEUR DE LION INVESTMENTS PTY LIMITED ACN 006 334 872 (eighth appellant) COEUR DE LION HOLDINGS PTY LTD ACN 003 209 934 (ninth appellant) CLOSERIDGE PTY LTD ACN 114 165 669 (tenth appellant) WARATAH COAL PTY LTD ACN 114 165 669 (eleventh appellant) v STEPHEN JAMES PARBERRY AND MICHAEL OWEN IN THEIR CAPACITIES AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (CONTROLLER APPOINTED) (IN LIQ) ACN 009 842 068 (first respondent) QUEENSLAND NICKEL PTY LTD (CONTROLLER APPOINTED) (IN LIQ) ACN 009 842 068 (second respondent)
FILE NO/S:	Appeal No 6561 of 2018 SC No 6593 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Application for Stay of Execution – Further Orders
ORIGINATING COURT:	Supreme Court at Brisbane – [2018] QSC 125 (Bond J)
DELIVERED ON:	20 November 2018
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGE:	Gotterson JA
ORDERS:	The appellants are to pay the respondents’ costs of the stay application as follows: 1. For costs incurred up to and including 26 June 2018, on the standard basis. 2. For costs incurred after 26 June 2018, on the indemnity basis.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellants’ application for a stay of certain orders in a suite of freezing orders was discontinued and dismissed – where an analogous application by a separate appellant had earlier been dismissed – where notification of the discontinuance of the application was very late – whether the appellants should pay the respondents’ costs on the indemnity basis Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 536, cited QNI Metals Pty Ltd & Ors v Parbery & Owen in their Capacities as Liquidators of Queensland Nickel Pty Ltd (Controller Appointed) (In Liq) & Anor[2018] QCA 139, considered
COUNSEL:	S M Iskander (sol) for the appellant G Gibson QC, with A Rae, for the respondent
SOLICITORS:	Alexander Law for the appellant King & Wood Mallesons for the respondent