SPD v DRH (No 2)

[2009] QCA 148

SUPREME COURT OF QUEENSLAND

CITATION:

SPD v DRH (No 2) [2009] QCA 148

PARTIES:

SPD
(applicant/respondent)
v
DRH
(respondent/appellant)

FILE NO/S:

Appeal No 11639 of 2008
SC No 3514 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Judgment delivered 15 May 2009
Further order delivered 29 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Keane, Fraser and Chesterman JJA
Judgment of the Court

FURTHER ORDER:

The appellant to pay the respondent's costs of and incidental to the appeal to be assessed on the indemnity basis

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where rejected settlement offers would not necessarily have resulted in more advantageous result for unsuccessful appellant – where prosecution of appeal distinctly unreasonable – whether costs should be ordered on indemnity basis

Property Law Act 1974 (Qld), s 341

COUNSEL:

The appellant appeared on her own behalf
P W Hackett for the respondent

SOLICITORS:

The appellant appeared on her own behalf
Evans & Company Family Lawyers for the respondent

1. THE COURT:  On 15 May 2009 the Court dismissed Ms DRH's appeal.  On behalf of Mr SPD it is now submitted that Ms DRH should pay his costs of the appeal on the indemnity basis.

1. On Mr SPD's behalf reliance is placed on offers of settlement made in January and February 2009 by his solicitors to Ms DRH's solicitors which Ms DRH did not accept.  It is not readily apparent from the terms of these offers that they would have afforded Ms DRH a more advantageous outcome than the dismissal of her appeal.  In this regard much will depend on the price obtained for the house in which the parties formerly lived.

1. Quite apart from the unaccepted offers of settlement, however, we consider that

   
   

   Ms DRH should be ordered to pay Mr SPD's costs of the appeal.  We take that view because the prosecution of the appeal was distinctly unreasonable having regard to the absence of any substantial basis for challenging the findings of the learned primary judge. 

1. We are confirmed in this view, notwithstanding s 341(2) of the Property Law Act 1974 (Qld). This Court should be astute to do what it can to minimise the expense to Mr SPD of an appeal which should never have been brought having regard to both the absence of any ground for complaint about the decision at first instance and the very modest sum in dispute in the appeal. No-one could have reasonably been of the view that this game was worth the candle.

Order

1. Ms DRH is to pay Mr SPD's costs of and incidental to the appeal to be assessed on the indemnity basis.