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Spencer v Burton

Spencer v Burton

Case [2015] QCA 145 14 August 2015

Civil Litigation & Procedure

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SUPREME COURT OF QUEENSLAND

CITATION:

Spencer v Burton [2015] QCA 145

PARTIES:

KENT RICHARD SPENCER
(aka KENNETH RICHARD SPENCER)
(appellant)
v
DAPHNE BURTON
(respondent)

FILE NO/S:

Appeal No 6469 of 2014
SC No 506 of 2012
SC No 820 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

Supreme Court at Townsville – Unreported, 23 June 2014

DELIVERED ON:

14 August 2015

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Holmes and Gotterson JJA and Ann Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The respondent pay the appellant’s costs of and incidental to the appeal, including the costs of and incidental to the security for costs application, the application to adduce further evidence and the notice of contention, to be assessed on the standard basis.

2.   The sum of $10,000 paid into court by the appellant as security for the respondent’s costs of the appeal together with all accretions thereon be paid to the solicitors for the appellant.

3.   The order of the primary judge made on 22 July 2014 that there be no orders as to costs of the first trial be set aside.

4.   The orders as to costs in respect of the first trial that took place in July 2013 and the re-trial be determined by the new trial judge at the conclusion of the re-trial.

5. The respondent be granted an indemnity certificate pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld) in respect of the appeal.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY – where the appellant successfully appealed against the decision of the learned trial judge – where the Court of Appeal remitted the matter to the trial division for determination by a different judge – whether the respondent should pay the appellant’s costs of the appeal on the standard basis – whether the costs of the appeal should be limited to the amount prescribed in s 14(1) of the Appeal Costs Fund Regulation 2010 (Qld) – whether an order should be made in relation to the costs of the first trial

PROCEDURE – COSTS – SECURITY FOR COSTS – OTHER MATTERS – where the appellant was ordered to pay the sum of $10,000 as security of the costs of the appeal – whether the security for costs of the appeal paid by the appellant together with all accretions thereon should be paid to the solicitors for the appellant

PROCEDURE – COSTS – CERTIFICATE FOR COSTS: COSTS ON OTHER THAN INFERIOR COURT SCALE – CASES TO WHICH STATUTE OR RULE APPLIES – where the respondent seeks an order granting an indemnity certificate pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld) – whether an indemnity certificate should be granted to the respondent

Appeal Costs Fund Act 1973 (Qld), s 15(1), s 16(3)
Appeal Costs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Spencer v Burton

Details

AGLC: Spencer v Burton [2015] QCA 145
Case: [2015] QCA 145
Decision Date: 14 August 2015

CaseChat Overview and Summary

The appeal in Spencer v Burton was between Spencer, the appellant, and Burton, the respondent. The appellant appealed the decision of the trial judge, which was subsequently remitted by the Court of Appeal to the trial division for re-trial by a different judge. The primary issues for the court were whether the respondent should pay the appellant's costs of the appeal on the standard basis, whether the costs of the appeal should be limited to the amount prescribed in section 14(1) of the Appeal Costs Fund Regulation 2010 (Qld), and whether an order should be made in relation to the costs of the first trial.

The court examined the principles governing costs in appeals and found that the appellant was entitled to costs on the standard basis as they were successful in their appeal. The court rejected the respondent's argument that the costs should be limited by the prescribed amount in the regulation, holding that the standard basis of costs was appropriate in this case. Regarding the costs of the first trial, the court set aside the previous order made by the primary judge and directed that the costs be determined by the new trial judge at the conclusion of the re-trial. The court also addressed the security for costs paid by the appellant and ruled that it, together with all accretions, should be paid to the appellant's solicitors. Lastly, the court granted the respondent an indemnity certificate in respect of the appeal under section 15(1) of the Appeal Costs Fund Act 1973 (Qld).

The final orders of the court were that the respondent pay the appellant's costs of and incidental to the appeal, including the costs of and incidental to the security for costs application, the application to adduce further evidence and the notice of contention, to be assessed on the standard basis. The sum of $10,000 paid into court by the appellant as security for the respondent's costs of the appeal together with all accretions thereon be paid to the solicitors for the appellant. The order of the primary judge made on 22 July 2014 that there be no orders as to costs of the first trial be set aside. The orders as to costs in respect of the first trial that took place in July 2013 and the re-trial be determined by the new trial judge at the conclusion of the re-trial. The respondent be granted an indemnity certificate pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld) in respect of the appeal.

Orders

Orders of the court

1. The respondent pay the appellant’s costs of and incidental to the appeal, including the costs of and incidental to the security for costs application, the application to adduce further evidence and the notice of contention, to be assessed on the standard basis.

2. The sum of $10,000 paid into court by the appellant as security for the respondent’s costs of the appeal together with all accretions thereon be paid to the solicitors for the appellant.

3. The order of the primary judge made on 22 July 2014 that there be no orders as to costs of the first trial be set aside.

4. The orders as to costs in respect of the first trial that took place in July 2013 and the re-trial be determined by the new trial judge at the conclusion of the re-trial.

5. The respondent be granted an indemnity certificate pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld) in respect of the appeal.

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.

Citations

AGLC Citation

Spencer v Burton [2015] QCA 145

Most Recent Citation

Multiplex Bluewater Marina Village Pty Ltd v Harbour Tropics Pty Ltd [2017] QCA 247

Cases citing this decision · 5 of 5 shown

Hartley v Hartley [No 2]
[2023] QCA 80 Para 4

…The applicant advanced the following contentions: (a)An analogy was to be drawn with Spencer v Burton [2015] QCA 145. In the present case, the Court of Appeal expressly directed the primary judge to “correct the errors which we have identified and to exercise his discretion on a proper basis”, which is what also…
Kimber v Kimama Holdings Pty Ltd trading as Visual Diversity Homes (No. 2)
[2020] QDC 229 Para 12

…nce it may be appropriate to order that party pay the costs of the first trial.[5] [5] Martin v Rowling & anor [2005] QCA 174, [10]; Spencer v Burton [2015] QCA 145, [18] and cases cited in each of those authorities.…
Kelly v Slade
[2018] QCA 270 Para 9

…rant an indemnity certificate having the effects and incidents set out in s 16 of that Act.” [3][2003] QCA 526 at [17]. See also Spencer v Burton [2015] QCA 145 at [22] and [23].…
Multiplex Bluewater Marina Village Pty Ltd v Harbour Tropics Pty Ltd
[2017] QCA 247 Para 8

…of law in his [or her] Honour’s reasons and that the respondent’s conduct and submissions at trial did not contribute to these errors”.[3] [2][2015] QCA 145. [3][2015] QCA 145 at [23].…
Gregg Lawyers Pty Ltd and Anor v Viki Maree Farrar (Formerly Sweeney)(No.2)
[2016] QDC 57

…wyers [2012] QDC 125 Sunland Group Ltd v Townsville City Council & Anor [2012] QCA 72 Mitchell v Pacific Dawn Pty Ltd [2003] QCA 526 Spencer v Burton [2015] QCA 145 Gregg Lawyers v Farrar [2014] QDC 194 Gregg Lawyers v Farrar [2015] QCA 289 Tabtill Pty Ltd v Creswick [2012] QCA 78 CATCHWORDS: COSTS – Indemnity ce…

View all 5 citing cases →

Cases cited in this decision · 7 of 7 shown

Burton v Spencer
[2015] QSC 187 Para 14

…lant, however, argues that such issues are irrelevant in relation to this matter. [8] Spencer v Burton [2014] QCA 204, [11]. [9] Burton v Spencer [2015] QSC 187.…
Spencer v Burton
[2015] QCA 104 Para 3

…n by a different judge.[1] The respondent’s application to adduce further evidence and notice of contention were refused.[2] [1] Spencer v Burton [2015] QCA 104. [2] Spencer v Burton [2015] QCA 104.…
Burton v Spencer
[2014] QCA 204 Para 5

…t 2014.[4] It was further ordered that the costs of the security for costs application be the parties’ costs of the appeal.[5] [4] Burton v Spencer [2014] QCA 204. [5] Burton v Spencer [2014] QCA 204. Submissions on costs of the appeal…
Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship
[2013] HCA 53 Para 22

…r legal advisers or counsel are in no way responsible. Failure by the judge to give adequate reasons was held on appeal in Pettitt v Dunkley [1971] 1 NSWLR 376 to constitute an error in law. When, as happened in the present case, that failure was attributable not to the parties but the judge, and the appeal su…
Martin v Rowling
[2005] QCA 174 Para 18

…or a new trial and it may be appropriate, in such circumstances, for that party to pay the costs of the first trial.[10] [10] Martin v Rowling & Anor [2005] QCA 174, [10].…
Mitchell v Pacific Dawn Pty Ltd
[2003] QCA 526 Para 22

…he Appeal Costs Fund Act 1973 (Qld) in which to grant an indemnity certificate having the effects and incidents set out in s 16 of that Act.” [11][2003] QCA 526, [17].…
Oshlack v Richmond River Council
[1998] HCA 11

…v Pacific Dawn Pty Ltd [2003] QCA 526, followed Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, followed COUNSEL: S J Keim SC for the appellant D B Fraser QC, with J A Greggery, for the respondent SOLICITORS: Purcell Taylor Lawyers for the appellant Connolly Suthers Lawyers for the respondent…

Legislation cited in this decision · 2

Appeal Costs Fund Act 1973 (Qld)
15(1), 16(3) 3 mentions (from Para 8)
Uniform Civil Procedure Rules 1999 (Qld)
681 2 mentions (from Para 6)

CITATION:	Spencer v Burton [2015] QCA 145
PARTIES:	KENT RICHARD SPENCER (aka KENNETH RICHARD SPENCER) (appellant) v DAPHNE BURTON (respondent)
FILE NO/S:	Appeal No 6469 of 2014 SC No 506 of 2012 SC No 820 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Orders
ORIGINATING COURT:	Supreme Court at Townsville – Unreported, 23 June 2014
DELIVERED ON:	14 August 2015
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Holmes and Gotterson JJA and Ann Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The respondent pay the appellant’s costs of and incidental to the appeal, including the costs of and incidental to the security for costs application, the application to adduce further evidence and the notice of contention, to be assessed on the standard basis. 2. The sum of $10,000 paid into court by the appellant as security for the respondent’s costs of the appeal together with all accretions thereon be paid to the solicitors for the appellant. 3. The order of the primary judge made on 22 July 2014 that there be no orders as to costs of the first trial be set aside. 4. The orders as to costs in respect of the first trial that took place in July 2013 and the re-trial be determined by the new trial judge at the conclusion of the re-trial. *5. The respondent be granted an indemnity certificate pursuant to s 15(1) of the Appeal Costs Fund Act* 1973 (Qld) in respect of the appeal.**
CATCHWORDS:	PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY – where the appellant successfully appealed against the decision of the learned trial judge – where the Court of Appeal remitted the matter to the trial division for determination by a different judge – whether the respondent should pay the appellant’s costs of the appeal on the standard basis – whether the costs of the appeal should be limited to the amount prescribed in s 14(1) of the Appeal Costs Fund Regulation 2010 (Qld) – whether an order should be made in relation to the costs of the first trial PROCEDURE – COSTS – SECURITY FOR COSTS – OTHER MATTERS – where the appellant was ordered to pay the sum of $10,000 as security of the costs of the appeal – whether the security for costs of the appeal paid by the appellant together with all accretions thereon should be paid to the solicitors for the appellant PROCEDURE – COSTS – CERTIFICATE FOR COSTS: COSTS ON OTHER THAN INFERIOR COURT SCALE – CASES TO WHICH STATUTE OR RULE APPLIES – where the respondent seeks an order granting an indemnity certificate pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld) – whether an indemnity certificate should be granted to the respondent Appeal Costs Fund Act 1973 (Qld), s 15(1), s 16(3) Appeal Costs…