Re Octaviar Ltd (No 8) - [2010] QCA 57

SUPREME COURT OF QUEENSLAND

CITATION:

Re Octaviar Ltd (No 8) [2010] QCA 57

PARTIES:

FORTRESS CREDIT CORPORATION (AUSTRALIA) II PTY LIMITED
ACN 114 624 958
(respondent/appellant)
v
OCTAVIAR LIMITED (FORMERLY MFS LIMITED) (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION)
ACN 107 863 436
(respondent/first respondent)
PUBLIC TRUSTEE OF QUEENSLAND
(applicant/second respondent)
COMMISSIONER OF TAXATION
(respondent/third respondent)
OPI PACIFIC FINANCE LIMITED
(respondent/not a party to the appeal)
WELLINGTON CAPITAL LIMITED
(respondent/not a party to the appeal)

FILE NO/S:

Appeal No 9506 of 2009
SC No 1848 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Keane and Muir and Chesterman JJA
Judgment of the Court

ORDER:

The costs of each of the respondents in this Court should be paid by the appellant on the standard basis

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE - COSTS FOLLOW THE EVENT – CO-DEFENDANTS – where respondents argued that the appellants should pay costs on the standard basis – where appellant argued that it was unreasonable for the respondents to have made separate submissions in relation to the fate of the appeal – where appellant argued that the respondents should be limited to one set of costs – whether each of the respondents are able to recover the costs of the appeal

Statham v Shephard (No 2) (1974) 23 FLR 244, applied

COUNSEL:

D F Jackson QC, with M J Luchich, for the appellant
K E Downes SC, with S B Hooper, for the first respondent
W Sofronoff QC, with D B O'Sullivan, for the second respondent
R M Derrington SC, with P G Bickford, for the third respondent

SOLICITORS:

Baker and McKenzie for the appellant
Henry Davis York for the first respondent
Clayton Utz for the second respondent
Australian Government Solicitor for the third respondent

THE COURT: On 9 March 2010 this Court dismissed the appeal by Fortress. The parties were given leave to make written submissions on the question of costs. The first respondent to Fortress' appeal is Octaviar (acting through its liquidators). Each of the second and third respondents asserts separate, and conflicting, rights against Octaviar. Each of the respondents seeks an order that Fortress pay its costs of and incidental to the appeal on the standard basis. The usual rule in relation to the disposition of the costs of a proceeding is that they should follow the event. On this view, the costs incurred by the respondents should be met by the appellant. Fortress, however, seeks an order that the respondents be limited to one set of costs.

On behalf of Fortress it is argued that it was unreasonable of the respondents for each of them to make separate submissions in relation to the fate of the appeal and that the respondents should therefore be limited to one set of costs.

Fortress relies upon the statement of principle by Woodward J in Statham v Shephard (No…

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: [2010] QCA 57
Decision Date: 19 March 2010

CaseChat Overview and Summary

In the case of Re Octaviar Ltd (No 8), the respondents sought to have the appellants bear the costs of the appeal on the standard basis. The appellants argued against this, claiming that it was unreasonable for the respondents to have made separate submissions concerning the outcome of the appeal and that they should be restricted to a single set of costs. The court was tasked with determining whether each of the respondents was entitled to recover their appeal costs from the appellants.

The primary legal issue before the court was whether it was appropriate for each of the respondents to be able to recover their costs of the appeal from the appellants on the standard basis. The appellants contended that the respondents' separate submissions were an unreasonable use of resources and that they should be limited to one set of costs. The respondents, on the other hand, argued that the standard basis for costs was appropriate given the nature of the proceedings and the separate interests involved.

The court concluded that the respondents were entitled to recover their costs on the standard basis. It held that the separate submissions were a reasonable use of the court's resources given the distinct interests of each respondent and the nature of the dispute. The court found no merit in the appellants' argument that the respondents should be limited to one set of costs. The decision underscored the principle that costs should generally follow the event, and that the standard basis for costs was appropriate in this case.

The final orders of the court were that the costs of each of the respondents in this Court should be paid by the appellant on the standard basis. This decision affirms the principle that costs should follow the event and that separate submissions by co-defendants are permissible where there are distinct interests at play.

Orders

Orders of the court

The costs of each of the respondents in this Court should be paid by the appellant on the standard 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:	Re Octaviar Ltd (No 8) [2010] QCA 57
PARTIES:	FORTRESS CREDIT CORPORATION (AUSTRALIA) II PTY LIMITED ACN 114 624 958 (respondent/appellant) v OCTAVIAR LIMITED (FORMERLY MFS LIMITED) (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) ACN 107 863 436 (respondent/first respondent) PUBLIC TRUSTEE OF QUEENSLAND (applicant/second respondent) COMMISSIONER OF TAXATION (respondent/third respondent) OPI PACIFIC FINANCE LIMITED (respondent/not a party to the appeal) WELLINGTON CAPITAL LIMITED (respondent/not a party to the appeal)
FILE NO/S:	Appeal No 9506 of 2009 SC No 1848 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Order
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	19 March 2010
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Keane and Muir and Chesterman JJA Judgment of the Court
ORDER:	The costs of each of the respondents in this Court should be paid by the appellant on the standard basis
CATCHWORDS:	PROCEDURE – COSTS – GENERAL RULE - COSTS FOLLOW THE EVENT – CO-DEFENDANTS – where respondents argued that the appellants should pay costs on the standard basis – where appellant argued that it was unreasonable for the respondents to have made separate submissions in relation to the fate of the appeal – where appellant argued that the respondents should be limited to one set of costs – whether each of the respondents are able to recover the costs of the appeal Statham v Shephard (No 2) (1974) 23 FLR 244, applied
COUNSEL:	D F Jackson QC, with M J Luchich, for the appellant K E Downes SC, with S B Hooper, for the first respondent W Sofronoff QC, with D B O'Sullivan, for the second respondent R M Derrington SC, with P G Bickford, for the third respondent
SOLICITORS:	Baker and McKenzie for the appellant Henry Davis York for the first respondent Clayton Utz for the second respondent Australian Government Solicitor for the third respondent