Robertson Street Properties P/L v RPM Promotions P/L

[2005] QCA 436

SUPREME COURT OF QUEENSLAND

CITATION:

Robertson Street Properties P/L v RPM Promotions P/L & Ors [2005] QCA 436

PARTIES:

ROBERTSON STREET PROPERTIES PTY LTD
ACN 058 675 577
(plaintiff/respondent)
v
RPM PROMOTIONS PTY LTD
ACN 103 249 118
(first defendant)
SIMON MOSLEY
(second defendant)
ARLO SELBY aka ARLO SUN and aka ARLO SELVEY
(third defendant)
MARK LEONARD SEABROOK
(fourth defendant/appellant)
OSIER PTY LTD
ACN 010 254 252
(fifth defendant)
LESLIE GEORGE WILSON

(sixth defendant)

ROBERTSON STREET PROPERTIES PTY LTD
ACN 058 675 577
(plaintiff/first respondent)
v
RPM PROMOTIONS PTY LTD
ACN 103 249 118
(first defendant)
SIMON MOSLEY
(second defendant/second respondent)
ARLO SELBY aka ARLO SUN and aka ARLO SELVEY
(third defendant/appellant)
MARK LEONARD SEABROOK
(fourth defendant/third respondent)
OSIER PTY LTD
ACN 010 254 252
(fifth defendant/fourth respondent)
LESLIE GEORGE WILSON
(sixth defendant/fifth respondent)

FILE NO/S:

Appeal No 4264 of 2005
Appeal No 4294 of 2005
SC No 3802 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal - Further Order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Judgment delivered 21 October 2005
Further Order delivered 25 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

7 October 2005

JUDGES:

McMurdo P, McPherson and Keane JJA
Further Order of the Court

FURTHER ORDER:

1.   In Appeal No 4264 of 2005 the respondent Robertson      Street Properties Pty Ltd is to pay the appellant's costs    of and incidental to the appeal to be assessed
2.   In Appeal No 4294 of 2005 the respondent Robertson      Street Properties Pty Ltd is to pay the appellant's costs    of and incidental to the appeal to be assessed
3. In Appeal No 4264 of 2005 and in Appeal No 4294 of 2005 the respondent Robertson Street Properties Pty Ltd is granted an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld)

CATCHWORDS:

PROCEDURE - COSTS - where judge of appeal at a directions hearing made a costs order against respondent - where respondent did not appeal from that order - where respondent now seeks to set aside order after appeals heard - whether respondent has established any reason to justify setting aside of order

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - where respondent contends successful appellants should not have their costs of the preparation of their appeal record books because the appeal record books were not well prepared - where it is by no means clear that the respondent's conduct did not contribute to the unsatisfactory nature of the appeal record books - whether successful appellants should be denied their costs of the preparation of their appeal record books

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - where appellant abandoned original outline of argument and filed new outline of argument one week before appeal heard - where respondent contends appellant should not have his costs of amending his outline of argument - where grounds of appeal in amended outline of argument substantially the same as those the subject of the notice of appeal and the original outline of argument - whether any reason to justify a departure from the usual costs order made in favour of a successful appellant

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - where appellant abandoned ground of appeal - where respondent contends this resulted in the respondent including in its appeal record book a great deal of unnecessary material - where appellant contends that most of the material in the respondent's appeal record book was not directed at the abandoned ground of appeal - whether respondent demonstrated the preparation of its appeal record book was necessary only because of the abandoned ground of appeal

PROCEDURE - COSTS - CERTIFICATE FOR COSTS: COSTS ON OTHER THAN INFERIOR COURT SCALE - CERTIFICATE FOR COSTS OR "OTHER" ORDER - CIRCUMSTANCES WHEN GRANTED - where respondent's case at trial deficient in a point of law - where costs incurred by parties in relation to the appeals the result of errors of law on the part of the court - where respondent applies for an indemnity certificate pursuant to s 15 Appeal Costs Fund Act 1973 (Qld) - whether indemnity certificate should be granted in respect of appeals

Appeal Costs Fund Act 1973 (Qld), s 15, s 21
Supreme Court of Queensland Act 1991 (Qld), s 43(4), s 43(5)

COUNSEL:

D J S Jackson QC, with I A Erskine, for the appellant in      Appeal No 4264 of 2005 and for the third respondent in      Appeal No 4294 of 2005
M M Stewart SC, with S S Monks, for the appellant in      Appeal No 4294 of 2005
L Stephens for the respondent in Appeal No 4264 of 2005      and for the first respondent in Appeal No 4294 of 2005
No appearance for the second, fourth and fifth respondents in      Appeal No 4294 of 2005

SOLICITORS:

Tucker & Cowen for the appellant in Appeal No 4264 of     2005 and for the third respondent in Appeal No 4294 of     2005
John M O'Connor & Company for the appellant in Appeal     No 4294 of 2005
Tobin King Lateef for the respondent in Appeal No 4264 of     2005 and for the first respondent in Appeal No 4294 of     2005
No appearance for the second, fourth and fifth respondents in     Appeal No 4294 of 2005

1. THE COURT:  This Court delivered judgment in this matter on 21 October 2005.  In each appeal the appeal was allowed with costs, the judgment below was set aside as against each appellant and no order was made as to the costs below.  On that same date, the parties were given leave by Keane JA to make further written submissions as to the appropriate order for costs of the appeal.

1. The respondent to both appeals, Robertson Street Properties Pty Ltd, seeks to set aside an order made against it by Keane JA at a directions hearing in respect of both appeals.  Unless set aside by this Court, an order or direction given by a judge of appeal has effect as an order or direction of the Court of Appeal.[1]  The respondent did not appeal from that order;  nor has it established any reason to justify the setting aside of that order.  The respondent also contends that because the appeal record books in both appeals were not well prepared the successful appellants should not have their costs of the preparation of the appeal records.  It is by no means clear that the respondent's conduct did not contribute to the unsatisfactory nature of the appeal record.  We are not persuaded that the successful appellants should be denied their costs of the preparation of the appeal record books on this basis.  The quantification of those costs is, of course, a matter for the officer of the Court responsible for the assessment of those costs.

   [1]Supreme Court of Queensland Act 1991 (Qld), s 43(4), s 43(5).

1. The respondent further contends that, in Appeal No 4264 of 2005, the appellant, Mr Seabrook, abandoned his original outline of argument and filed a new outline of argument one week before the appeal hearing so that he should not have the costs of amending that outline of argument.  The grounds of appeal raised in the amended outline of argument were, however, substantially the same as those the subject of the notice of appeal and in the original outline.  The respondent's contention is not one which would justify a departure from the usual costs order made in favour of a successful appellant which was made in this case.

1. The respondent next contends that, in Appeal No 4294 of 2005, the appellant, Mr Selby, abandoned a ground of appeal in relation to Mr Selby's lack of knowledge of the dates of the original trial which resulted in the respondent including in its appeal record book volume 5 a great deal of unnecessary material.  On Mr Selby's behalf it is contended that most of the material in volume 5 was not directed to demonstrating Mr Selby's knowledge of the dates of the original trial.  The respondent has failed to demonstrate that the preparation of volume 5 was necessary only because of the ground of appeal abandoned by Mr Selby.

1. Finally the respondent applies for an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) ("the Act"). This Court has a wide discretion in granting an indemnity certificate.[2] The principal consideration relevant to the exercise of that discretion is that the respondent's case for damages against both Selby and Seabrook was deficient in point of law. The respondent cannot expect entirely to avoid responsibility for presenting a flawed case to the Court; but in the end the costs incurred by the parties in relation to the appeal were the result of errors of law on the part of the Court. In this regard, it should also be said, however, that, in Appeal No 4264 of 2005, the flaws in the respondent's case were more fully articulated on appeal than at first instance, and that, in Appeal No 4294 of 2005, the flaws in the respondent's case against the appellant Selby were not addressed because of Selby's failure to participate in the trial. In these circumstances, we would grant the respondent an indemnity certificate under s 15 of the Act.

   [2]Appeal Costs Fund Act 1973 (Qld), s 21.

1. Further Orders

1.          In Appeal No 4264 of 2005 the respondent Robertson Street Properties Pty Ltd is to pay the appellant's costs of and incidental to the appeal to be assessed.

2.          In Appeal No 4294 of 2005 the respondent Robertson Street Properties Pty Ltd is to pay the appellant's costs of and incidental to the appeal to be assessed.

3. In Appeal No 4264 of 2005 and in Appeal No 4294 of 2005 the respondent Robertson Street Properties Pty Ltd is granted an indemnity certificate in respect of the appeal under s 15 Appeal Costs Fund Act 1973 (Qld).