Roberts v Australia and New Zealand Banking Group Ltd

[2006] QCA 31

SUPREME COURT OF QUEENSLAND

CITATION:	Roberts v Australia and New Zealand Banking Group Ltd [2006] QCA 31
PARTIES:	HEATHER JOY ROBERTS (plaintiff/respondent) v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522 (defendant/applicant/appellant)
FILE NO/S:	Appeal No 5639 of 2005 DC No 1625 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave s 118 DCA (Civil) - Further Order
ORIGINATING  COURT:	District Court at Brisbane
DELIVERED ON:	Judgment delivered 16 December 2005 Further Order delivered 17 February 2006
DELIVERED AT:	Brisbane
HEARING DATE:	18 November 2005
JUDGES:	de Jersey CJ, Jerrard JA and Mackenzie J Judgment of the Court
ORDER:	Paragraph five of the orders made on 16 December 2005 by this Court be amended to provide as follows: The respondent pay the appellant’s costs, to be assessed, of and incidental to the applications in the District Court filed on 22 April 2005 and 10 May 2005 and of the proceeding in the District Court and the appeal
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the original costs order was deemed ambiguous – where both parties consent to variation of orders to remove ambiguity – where respondent subsequently ordered to pay all costs, both incidental and otherwise to the applications in all courts
COUNSEL:	M O’Sullivan for the appellant G Mullins for the respondent
SOLICITORS:	Tutt Down McKeering Solicitors for the appellant Maurice Blackburn Cashman for the respondent

1. THE COURT: In granting leave to appeal and allowing the appeal, on 16 December 2005, the Court ordered that “the respondent pay the appellant’s costs, to be assessed, of the proceeding in the District Court and the appeal”.

2. Counsel for the appellant submitted on 22 December 2005 that the costs order should be amended to read:

   “The respondent pay the appellant’s costs, to be assessed, of and incidental to the applications in the District Court filed on 22 April 2005 and on 10 May 2005 and of the proceeding in the District Court and the appeal.”

3. The solicitor for the respondent advised on 9 February 2006 that he agreed to such a variation.

4. The Court’s intent was that the costs order embrace the costs of the applications referred to in the proposed amendment. In its present form, the order is probably apt to cover them.

5. But to avoid any arguable doubt, the Court now orders that para 5 of the orders made on 16 December 2005 be amended to provide as follows:

   “The respondent pay the appellant’s costs, to be assessed, of and incidental to the applications in the District Court filed on 22 April 2005 and 10 May 2005 and of the proceeding in the District Court and the appeal.”