Remely v. O'Shea

[2008] QCA 111

SUPREME COURT OF QUEENSLAND

CITATION:

Remely v O’Shea & Anor [2008] QCA 111

PARTIES:

OTTO REMELY
(applicant/appellant)
v
LEANNE O’SHEA
(first respondent)
GEOFF VANDENBERG AND LARAINE VANDENBERG
(second respondents)

FILE NO/S:

Appeal No 8395 of 2007
SC No 01 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order as to Costs

ORIGINATING COURT:

Supreme Court at Bundaberg

DELIVERED ON:

20 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

McMurdo P, Fraser JA and Mackenzie AJA
Judgment of the Court

ORDERS:

That the costs order made on 4 April 2008 be vacated1.    

That the applicant/appellant pay the respondents' costs of the appeal and the applications, to be assessed on the standard basis in the case of the first respondent and to be assessed on the indemnity basis in the case of the second respondents2.    

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where the appeal was dismissed by the Court – where the applicant/appellant had rejected a more favourable offer many months before the hearing – where the applicant/appellant pursued some hopeless contentions on appeal – where the applicant/appellant alleged that an order for indemnity costs was not warranted due to a large disparity in the financial resources of the parties – where there was no evidence to demonstrate the alleged disparity – where the amount really in issue in the proceedings appears to have been less than $200 – whether in the circumstances an order for indemnity costs should be made against the applicant/appellant

Colgate-Palmolive Co & Anor v Cussons Pty Ltd
(1993) 46 FCR 225; (1993) 118 ALR 248; [1993] FCA 536, cited
Di Carlo v Dubois & Ors[2002] QCA 225, cited
Greenhalgh v Bacas Training Limited & Ors
[2007] QCA 365, cited
Lawes v Nominal Defendant[2007] QCA 437, cited

SOLICITORS:

The applicant/appellant made written submissions on his own behalf
No appearance on behalf of the first respondent
Payne Butler Lang for the second respondents  

1. THE COURT:  On 4 April 2008 the Court dismissed the appellant's appeal against a trial judge's refusal of his application for judicial review of a decision of the first respondent acting as referee under the Small Claims Tribunal Act 1973 (Qld).  The Court also refused various applications made by the appellant.  The Court ordered the appellant to pay the respondents' costs of the appeal and those applications to be assessed on the standard basis in each case, but the second respondents were given leave to make written submissions pursuant to Practice Direction No 1 of 2005 in support of their application that the costs should instead be assessed on the indemnity basis. 

1. The second respondents rely in part on the appellant’s failure to accept their offer made on 26 October 2007 that if the appellant withdrew his appeal within 14 days then the second respondents would not seek any costs of the appeal. That offer…