Smits v Tabone

Case [2007] QCA 337

SUPREME COURT OF QUEENSLAND

CITATION:

Smits v Tabone; Blue Coast Yeppoon Pty Ltd v Tabone [2007] QCA 337

PARTIES:

LEONARDUS GERARDUS SMITS
(Respondent/Appellant)
v
DOROTHY TABONE
(Applicant/Respondent)

BLUE COAST YEPPOON PTY LTD (ACN 124 579 059)
(Respondent/Appellant)
v
DOROTHY TABONE
(Applicant/Respondent)

FILE NO:

Appeal No 2651 of 2007
Appeal No 4208 of 2007

SC No 223 of 2007  SC No 86 of 2007      

DIVISION:

Court of Appeal

PROCEEDING:

Application for costs

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

12 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

21 September 2007

JUDGES:

Muir JA, Cullinane and Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

a) The appeals are dismissed
b) The respondent’s costs of both appeals are to be paid by the appellant, Leonardus Gerardus Smits on an indemnity basis  

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON AN INDEMNITY BASIS – where the appellants agreed and gave notice to the respondent that the two appeals to be heard should be dismissed – where the respondent rejected the appellants’ offer to pay the respondent’s costs of the appeals on a standard basis – whether costs on an indemnity basis should be ordered

Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359, considered Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, considered  Di Carlo v Dubois & Ors[2002] QCA 225, cited                   Huntsman Chemical Company Australia Ltd v International Pools Australia Pty Ltd (1995) 36 NSWLR 242, considered   Riches v Hogben [1985] 2 Qd R. 292, cited Rosniak v Government Insurance Office (1997) 41 NSWLR 608, considered   Smits v Tabone and Blue Coast Yeppoon Pty Ltd v Tabone[2007] QCA 172, cited  

COUNSEL:

M D Martin for the appellants

J B Sweeney for the respondent

SOLICITORS:

Morgan Conley for the appellants

Rees R & Sydney Jones for the respondents

  1. MUIR JA: I agree with the reasons of Cullinane J and with his proposed orders.

  1. CULLINANE J:  In this matter the two appeals (CA No 2651/07 and CA No 4208/07) are to be heard together as the result of an order made on 30 May 2007.  The two appeals are to be dismissed by consent.

  1. On 10 September 2007 approximately one week before the matters were to be heard the appellants gave notice to the respondent that they did not intend to pursue the appeals.  An offer was made by the appellants at that time to pay the respondent’s costs of the appeals on a standard basis.  The respondent rejected the offer contending that she should receive her costs on an indemnity basis. 

  1. It is this issue which remains for determination by this Court.

  1. Each appeal lies from an order by the central Judge ordering the removal of a caveat over the same parcel of land, namely Lot 1 on SP186802, Parish of Yeppoon, County of Livingstone, Title…

Continue reading Smits v Tabone

Sign in free to access the full text

Details
AGLC
Smits v Tabone [2007] QCA 337
Case
[2007] QCA 337
Decision Date

CaseChat Overview and Summary

In the case of Smits v Tabone, the appellants, Leonardus Gerardus Smits and another, appealed against a decision of the District Court of Western Australia. The primary dispute involved the costs associated with two appeals. The respondent, Tabone, had previously rejected the appellants' offer to pay his costs on a standard basis. The appellants had agreed to dismiss the appeals and provided notice of this intention to the respondent. Despite this, the appellants had not agreed to pay the respondent's costs of the appeals on an indemnity basis. The court was required to determine whether, in these circumstances, it was appropriate to order the appellants to pay the respondent's costs on an indemnity basis.

The central legal issue before the court was whether it was permissible to order costs on an indemnity basis when the appellants had dismissed their appeals and had not agreed to pay such costs. The court considered the general rule that costs follow the event, but also the circumstances in which it may depart from this rule. The court had to balance the appellants' conduct in agreeing to dismiss the appeals against the respondent's refusal to accept the appellants' offer to pay costs on a standard basis.

The court held that despite the appellants' agreement to dismiss the appeals, the respondent's refusal to accept the appellants' offer to pay costs on a standard basis warranted an order for costs on an indemnity basis. The court reasoned that the respondent's insistence on indemnity costs was reasonable, given the appellants' conduct and the fact that the appeals were ultimately dismissed. The court found that the respondent was entitled to the indemnity costs he had sought. Consequently, the appeals were dismissed, and the respondent's costs of both appeals were to be paid by the appellant, Leonardus Gerardus Smits, on an indemnity basis.

Orders

Orders of the court

a) The appeals are dismissed

b) The respondent’s costs of both appeals are to be paid by the appellant, Leonardus Gerardus Smits on an indemnity basis

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.