Theden v. Nominal Defendant & Anor

Case [2008] QCA 92

SUPREME COURT OF QUEENSLAND

CITATION:

Theden v Nominal Defendant & Anor [2008] QCA 92

PARTIES:

THEKLA CHARLOTTE THEDEN
(first plaintiff/not party to appeal)
ULRICH THEDEN
(second plaintiff/respondent)
v
NOMINAL DEFENDANT
(first defendant/appellant)
STATE OF QUEENSLAND
(second defendant/second appellant)
THE COUNCIL OF THE SHIRE OF COOK
(third defendant/not party to appeal)

FILE NO/S:

Appeal No 7610 of 2007
SC No 63 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal - Further Order as to Costs

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

18 April 2008

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Keane, Holmes and Fraser JJA
Judgment of the Court

ORDER:

Appellants 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 the appeal was dismissed by the Court – where the amount in issue under the proceedings was $1,423.08 – where an order for costs to be recovered on the standard basis would result in the amount actually in dispute being exhausted by the difference between the costs payable by the respondent to his lawyers and the costs recoverable from the appellants – where the points on which the appeal turned were not wholly unarguable – whether the Court should order that costs be payable by the respondent to the appellant on the indemnity basis

Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 118 ALR 248; [1993] FCA 536, cited
Di Carlo v Dubois & Ors[2002] QCA 225, cited

Smits v Tabone; Blue Coast Yeppoon Pty Ltd v Tabone[2007] QCA 337, cited

COUNSEL:

R G Bain QC, with G J Robinson, for the appellants
T W Quinn for the respondent

SOLICITORS:

Broadley Rees for the appellants
Greg Ryan Solicitor for the respondent

  1. THE COURT:  On 28 March 2008 the Court dismissed the appeal in this matter.  The respondent was given leave to make a written submission to the Court as to the basis on which the appellants should be ordered to pay the respondent's costs of the appeal.  Both sides have made submissions in that regard.

  1. The respondent seeks an order that the appellants pay his costs on the indemnity basis.  The respondent points to the trifling amount which was in dispute:  it appears that the amount in issue was only $1,311.60 plus an assessment fee of 8.5 per cent, a total of $1,423.08.  It is said on the respondent's behalf that, if the respondent recovers his costs on the standard basis, the amount actually in dispute will be exhausted by the difference between the costs payable by the respondent to his lawyers and the costs recoverable from the appellants.  The respondent argues that this circumstance, coupled with the appellants' pursuit of "unsupportable allegations of misconduct" against Mr Goudkamp, makes this an appropriate case for the award of costs on the indemnity basis.[1]

    [1]Cf Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 118 ALR 248 at 251 – 254.

  1. The appellants resist the respondent's application on the footing that there was no "evidence of unreasonable conduct"[2] on their part, in that some, at least, of the grounds agitated by the appellants were fairly arguable so that the appeal was not "wholly without … merit".[3]

  1. It may be accepted that the points on which the appeal turned, and which were resolved against the appellants, were not wholly unarguable.  Nevertheless, the pursuit of these points in a case where the amount in issue was paltry and where it was an integral part of the appellants' case that Mr Goudkamp was guilty of criminal misconduct, a view contrary to longstanding authority, is, we think, deserving of the description "unreasonable" in the sense used in the authorities relating to the award of indemnity costs.

  1. Accordingly, we order that the appellants should pay the respondent's costs of and incidental to the appeal to be assessed on the indemnity basis.


Details
AGLC
Theden v Nominal Defendant [2008] QCA 92
Case
[2008] QCA 92
Decision Date

CaseChat Overview and Summary

The case of Theden v. Nominal Defendant & Anor was heard by the court, where the primary issue revolved around the costs incurred during the proceedings. The appellants had appealed against the decision, which was ultimately dismissed. The total amount in dispute in the case was $1,423.08. The court was tasked with determining whether the costs, which were to be recovered on the standard basis, would lead to the actual amount in dispute being consumed by the difference between the costs the respondent had to pay to his lawyers and the costs recoverable from the appellants. Additionally, the court had to consider whether the points on which the appeal hinged were not entirely without merit, and whether it should order the respondent to pay the appellants' costs on an indemnity basis.

The court examined the principles of awarding costs on an indemnity basis, which typically applies in cases where the appeal is entirely without merit. However, in this instance, the appeal was not entirely without arguable points. The court had to balance the need to ensure that the respondent did not incur an unjust financial burden against the principle that the losing party should bear the costs of the litigation. Given that the appeal had arguable points, the court found it appropriate to order that the respondent should pay the appellants' costs on an indemnity basis. This decision was made to prevent the respondent from being disproportionately burdened by the litigation costs, which would otherwise result in the actual amount in dispute being exhausted.

The court concluded that ordering costs on an indemnity basis was necessary to achieve a fair and just outcome in the case. It recognised that while the appeal had arguable points, the respondent should not be required to bear the full burden of the litigation costs, as this would result in the actual amount in dispute being consumed. The court's decision to order costs on an indemnity basis was aimed at ensuring that the respondent did not suffer an undue financial disadvantage. The final orders of the court were that the appellants were to pay the respondent's costs of and incidental to the appeal, to be assessed on the indemnity basis.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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