Stariha v K & T Earthmoving Pty Ltd (No 2)

DISTRICT COURT OF QUEENSLAND

CITATION:

Stariha v K & T Earthmoving Pty Ltd (No 2) [2023] QDC 150

PARTIES:

JOHN STARIHA

(appellant)

v
K & T EARTHMOVING PTY LTD
ACN 144 074 546

(respondent)

FILE NO/S:

2349/222

DIVISION:

District Court of Queensland

PROCEEDING:

Civil appeal

ORIGINATING COURT:

Magistrates Court Brisbane

DELIVERED ON:

18 August 2023

DELIVERED AT:

Brisbane

HEARING DATE:

5 May 2023 and further written submissions as to costs

JUDGES:

Dearden DCJ

ORDER:

1.   Respondent pay the appellant’s costs of the proceedings in the Magistrates Court on the standard basis up to 9 June 2022, and on the indemnity basis thereafter.

2.   Respondent pay the appellant’s costs of the appeal on a standard basis.

3. Application for a certificate pursuant to the Appeal Costs Fund Act 1973 is refused.

CATCHWORDS:

APPEAL – APPEAL ALLOWED – COSTS – STANDARD OR INDMNITY BASIS - where the respondent seeks a grant of an indemnity certificate pursuant to the Appeals Cost Fund Act 1973 (Qld) – whether the learned magistrate fell into error through no fault of the respondent – where there was a Calderbank offer made

COUNSEL:

J R Moxon for the appellant
R J Bull for the respondent

SOLICITORS:

Shand Taylor Lawyers for the appellant

McInnes Wilson Lawyers for the respondent

Introduction

1. On 23 June 2023, this court delivered a decision in the appeal and made the following orders:

   1.The appeal be allowed.

   2.The orders of the Magistrates Court made on 26 August 2022 be set aside and in their place it be ordered that:

   (i)The plaintiff’s application filed 9 August 2022 be dismissed;

   (ii)The proceeding be dismissed.

   3.The respondent pay the appellant’s costs on a standard basis.

   4.Unless the respondent provides written submissions on or before 7 July 2023 (at) 4pm, if such submissions are provided the appellant may provide submissions in reply on or before 4pm 14 July 2023.

2. Upon delivery of the decision, this court invited submissions from the appellant and the respondent on costs.  The respondent filed an outline of argument on 6 July 2023; the appellant filed submissions on costs on 14 July 2023 and filed an affidavit of Roderick Ernest O’Sullivan on the same date; the respondent filed a further outline of argument on 24 July 2023. 

3. The respondent in its initial outline of argument on costs seeks the grant of a certificate pursuant to the Appeal Costs Fund Act 1973 (Qld) s 15 which relevantly provides:

   “15     Grant of indemnity certificate

   (1)…

   (2)Where an appeal against the decision of a court to the District Court on a question of law succeeds, the District Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal.”

4. The respondent identifies that the award of an indemnity certificate is within the unfettered discretion of the court, but the court must be convinced that the statutory pre-requisites have been satisfied and that it is justified to grant the certificate, which can only be granted if the…