Appeal No 10327 of 2004 Appeal No 10328 of 2004 DC No 2660 of 2004 DC No 3286 of 2004
DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
15 April 2005
DELIVERED AT:
Brisbane
HEARING DATE:
5 April 2005
JUDGES:
Williams and Keane JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:
In each application: 1. application for extension of time within which to file the notice of appeal and to apply for leave to appeal granted 2. leave to appeal granted 3. appeal dismissed 4. appellants Tamawood Limited and Phil Martyn Constructions Pty Ltd pay the respondent's costs of the application and appeal to be assessed on the standard basis
CATCHWORDS:
PROCEDURE - INFERIOR COURTS - QUEENSLAND - COMMERCIAL AND CONSUMER TRIBUNAL - COSTS - where person successful in action against two companies before the Tribunal - where the two companies were ordered by Tribunal to pay damages - where no order for costs made in favour of the person - where Tribunal found each party was justified in engaging legal representation - where all parties appealed to the District Court - where District Court judge confirmed decision of Tribunal on the merits but ordered the two companies to pay the person's costs of proceedings in the Tribunal - where relevant Act provides '…parties pay their own costs unless the interests of justice require otherwise' - whether order for costs made by District Court judge was in the interests of justice
PROCEDURE - INFERIOR COURTS - DISTRICT COURT - CIVIL JURISDICTION - PRACTICE - COSTS - where appeal from Commercial and Consumer Tribunal lies to District Court - where relevant Act provides that '…appellant must pay the costs of the appeal, including the costs of any transcript' - where District Court judge made costs order in favour of appellants - whether District Court judge had discretion to award costs to appellants - whether that discretion was exercised correctly
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - TIME FOR APPEAL - EXTENSION OF TIME - WHEN GRANTED - where two companies failed to file notices of appeal and applications for leave to appeal in time - where affidavit showed this was due to confusion on part of their solicitors - whether delay caused any prejudice to respondent
[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.
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Details
AGLC
Tamawood Ltd v Paans [2005] QCA 111
Case
[2005] QCA 111
Decision Date
CaseChat Overview and Summary
The case of Tamawood Ltd v Paans involved Tamawood Ltd, which was successful in an action against two companies before the Commercial and Consumer Tribunal (CCT) in Queensland. The dispute centred around whether the companies should be ordered to pay damages and, if so, whether the successful party was entitled to costs. The CCT found that each party was justified in engaging legal representation and did not order costs in favour of Tamawood Ltd. The companies and Tamawood Ltd subsequently appealed to the District Court, which confirmed the CCT's decision on the merits but ordered the companies to pay Tamawood Ltd's costs in the Tribunal. The appeal further considered whether the District Court judge had the discretion to award costs to the appellants and whether this discretion was exercised correctly.
The primary legal issues were whether the District Court judge's order for costs was in the interests of justice and whether the judge had the discretion to award costs to the appellants. The relevant legislation, the Commercial and Consumer Tribunal Act 2003, provided that parties pay their own costs unless the interests of justice require otherwise. The District Court judge ordered the companies to pay Tamawood Ltd's costs, even though the CCT had found that each party was justified in engaging legal representation. The appeal also examined whether the District Court judge had discretion to award costs to the appellants, given the relevant Act stated that the appellant must pay the costs of the appeal, including transcript costs.
The District Court judge's order for costs was scrutinised in light of the statutory provision that parties bear their own costs unless the interests of justice require otherwise. The Court concluded that the judge had discretion to make such an order and exercised it correctly, considering the overall fairness and the practicalities of the case. Regarding the costs of the appeal, the Court noted that the relevant Act stipulated that the appellant must bear the costs of the appeal. However, the Court found that the delay in filing the notices of appeal and applications for leave to appeal, due to confusion on the part of the companies' solicitors, did not prejudice the respondent. Consequently, the Court granted the extension of time and allowed the appeals, dismissing them on the merits but ordering the companies to pay the respondent's costs of the application and appeal.
Orders
Orders of the court
In each application:
1. application for extension of time within which to file the notice of appeal and to apply for leave to appeal granted
2. leave to appeal granted
3. appeal dismissed
4. appellants Tamawood Limited and Phil Martyn Constructions Pty Ltd pay the respondent's costs of the application and appeal to be assessed on the standard basis