Roberts v Australia and New Zealand Banking Group Ltd

Case [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.”

Details
AGLC
Roberts v Australia and New Zealand Banking Group Ltd [2006] QCA 31
Case
[2006] QCA 31
Decision Date

CaseChat Overview and Summary

In Roberts v Australia and New Zealand Banking Group Ltd, the appellant sought to appeal against an order concerning costs in a dispute that had been previously determined in the District Court. The respondent, Australia and New Zealand Banking Group Ltd, had been ordered to pay certain costs related to the appellant's applications and proceedings in both the District Court and the appeal. The ambiguity in the original order regarding the scope of the costs payable led to the current appeal.

The central legal issue was whether the ambiguity in the original costs order was sufficiently resolved by the consent orders that followed, and if so, whether it was appropriate for the court to subsequently order the respondent to pay all costs, both incidental and otherwise, related to the applications in all courts. The court had to determine if the subsequent consent orders effectively clarified the original ambiguous order and if the final order for the respondent to pay all costs was justified.

The court found that the original order was indeed ambiguous, and the subsequent consent orders did not sufficiently clarify the scope of the costs to be paid by the respondent. The court considered the implications of the consent orders and concluded that it was necessary to remove the ambiguity to ensure clarity in the enforcement of the order. The court held that it had the authority to vary the original order to remove the ambiguity, and subsequently ordered the respondent to pay all costs, both incidental and otherwise, to the appellant in relation to the applications and proceedings in all courts.

The court made an order amending the original costs order to clarify that the respondent was to 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. The court's decision ensured that the respondent's liability for costs was clearly defined and enforceable, thereby resolving the ambiguity that had arisen from the original order.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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