Seilers Transport Pty Ltd v McGrath (No 2)

DISTRICT COURT OF QUEENSLAND

CITATION:

Seilers Transport Pty Ltd v McGrath (No 2) [2016] QDC 89

PARTIES:

SEILERS TRANSPORT PTY LTD

(appellant)

v

DESMOND RODNEY McGRATH

(respondent)

FILE NO/S:

2251/15

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

26 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Dorney QC DCJ

ORDER:

1.   It is ordered that the appellant pay the respondent’s costs of the appeal fixed at 95% of those costs.

CATCHWORDS:

Appeal – whether the substantially successful respondent should be awarded percentage costs and, if so, at what figure

LEGISLATION CITED:

Uniform Civil Procedure Rules 1999 r 189(4), r 681, r 684, r 766(1)(d), r 785

CASES CITED:

BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No 2) [2009] QSC 64

Murdoch v Lake [2014] QCA 269

Seilers Transport Pty Ltd v McGrath [2016] QDC 75

Sochorova v Commonwealth of Australia [2012] QCA 152

COUNSEL:

A F Messina for the Appellant

A M Christie for the Respondent

SOLICITORS:

Slade Waterhouse for the Appellant

Aden Lawyers for the Respondent

Introduction

1. On 8 April 2016, when making orders to dismiss this appeal, I gave leave for submissions to be filed and served by either party, or both parties, by 4pm on 15 April 2016.  Both parties have emailed to the “court” respective outlines of submissions – and I am happy to receive them in that form.

1. In Seilers Transport Pty Ltd v McGrath [2016] QDC 75 I had stated that I intended to order that the respondent recover his costs, fixed at 95% of those costs, “to reflect the small success of the appellant on one particular question of costs”: at [40]. Necessarily, these submissions have been directed to that expressed intention.

1. The costs in question involved the issue of r 189(4) of the Uniform Civil Procedure Rules 1999 (“UCPR”). 

Appellant’s submissions

1. After noting an extract from the decision of McMurdo J (as he then was) in BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No 2) [2009] QSC 64 (at [8]), the appellant contended that a partial reduction in the costs payable to one of the parties “is the most efficient and cost effective way of allocating the costs burden in this appeal” – but that it only reflects one side of the equation (namely, the extent to which the respondent had a “loss”) and does not reflect the other side (namely, the extent to which the appellant had a “success”). As a consequence, it was argued that, in order to better reflect the “wins and losses of both parties”, there ought to be a reduction on the side of the costs equation to a more generous allocation.

1. With respect to the actual percentage – although I had indicated the figure of 5% – it was stated that it was not reflective of the time and submissions made that were involved in the “question of costs” in the appeal. It was contended that approximately…