Superstart Batteries Pty Ltd v Fleming and Sandford Enterprises Pty Ltd (No.2)

[2010] QDC 204

DISTRICT COURT OF QUEENSLAND

CITATION:

Superstart Batteries Pty Ltd v Fleming and Sandford Enterprises Pty Ltd (No.2) [2010] QDC 204

PARTIES:

SUPERSTART BATTERIES PTY LTD ACN 101 683 694

Appellant

v

FLEMING AND SANDFORD ENTERPRISES PTY LTD ACN 007 848 517

Respondent

FILE NO:

292 of 2009

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Maroochydore

DELIVERED ON:

14 May 2010

DELIVERED AT:

Maroochydore

HEARING DATE:

29 April 2010 with written submissions received 3 & 5 May 2010

JUDGE:

K S Dodds, DCJ

ORDER:

I order the appellant pay the respondent’s costs of the appeal to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – DEPARTING FROM THE GENERAL RULE – where appellant unsuccessful with respect to major argument on appeal

Uniform Civil Procedure Rules 1999 r 681(1)

Cases cited:

Hughes v Western Australian Cricket Association (Inc) and Ors (1986) ATPR 40-748

Nicholl Holdings Pty Ltd v Maharaj (No.2) [2008] QSC 133

X and Y (by her Tutor X) v PAL (On question of costs) [1991] NSWCA 302

COUNSEL:

L Hagen (sol) for the appellant

S J Courtney for the respondent

SOLICITORS:

Greenhalgh Pickard Solicitors for the appellant

Butler McDermott Lawyers for the respondent

1. Judgment for the plaintiff in this matter was given on 29 April 2010.  The appeal by the defendant was allowed but only in a minor respect.  That had the effect of reducing the judgment amount by about 6%. 

1. As observed in the reasons for judgment, the appellant failed on its major ground of appeal.  Its minor (alternative) ground of appeal contended that the judgment amount should be reduced by the sum of three invoices, part of a large number of invoices, the total of all invoice amounts making up the judgment amount.  Its contention succeeded with respect to one of those three invoices.

1. Rule 681(1) of the Uniform Civil Procedure Rules 1999 (UCPR) provide that “costs of a proceeding, including an application in a proceeding are in the discretion of the court, but follow the event unless the event court otherwise orders”.

1. In X and Y (by her Tutor X) v PAL (On question of costs) [1991] NSWCA 302, the result of an appeal was mixed. Clarke JA considered that when resolving cost issues where a party partially succeeds, the principles are those set out by Toohey J in Hughes v Western Australian Cricket Association (Inc) and Ors (1986) ATPR 40-748. His Honour said that the overriding objective must be to make an order which is appropriate to the justice of the case.

1. In Nicholl Holdings Pty Ltd v Maharaj (No.2) [2008] QSC 133, McMeekin J concluded that the costs incurred by a plaintiff relevant to the limited issues on which it had succeeded were swamped by the costs the defendant had to incur in defeating the claims made against it. The plaintiff had effectively lost on all major issues. The plaintiff was ordered to pay the defendant’s costs of the proceeding.

1. In the context of the whole appeal, the extent to which the appellant succeeded was minimal.  The issue on which it did not succeed was the heart of the appeal and occupied almost the entire argument.  Moreover the alternative argument about three invoices also failed to the extent it was based upon the credit of the witness Alamango which was the main thrust of the argument about the invoices.

1. I order the appellant pay the respondent’s costs of the appeal to be assessed on the standard basis.