Toohey v Golder (No 3)

Case [2022] QSC 176

SUPREME COURT OF QUEENSLAND

CITATION:

Toohey v Golder (No 3) [2022] QSC 176

PARTIES:

NICOLLE TOOHEY

(plaintiff)

v
ANDREW GOLDER

(first defendant)

AND

EMMA GOLDER

(second defendant)

AND

HIGH CHURCH PTY LTD ABN 37 604 346 170

(third defendant)

FILE NO/S:

9524/2016

DIVISION:

Trial Division - Applications

ORIGINATING COURT:

Brisbane Supreme Court

DELIVERED ON:

25 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

8 July 2022

JUDGE:

Freeburn J

ORDER:

1.   The application for leave to appeal against the costs order is refused.

2.   I will hear parties as to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE – PAYMENTS INTO COURT AND SETTLEMENTS – UNREASONABLE REFUSAL OF OFFER – APPEAL AGAINST COSTS ORDER – where ethe plaintiff sought damages for breach of contract by way of termination by the defendants – where the plaintiff sought to recover an amount as a debt due and owing for unpaid commissions by the defendants – where the defendants advances a counterclaim against the plaintiff – where the plaintiff failed on their claim for damages arising from the alleged breach of contract – where the plaintiff succeeded on their claim for unpaid commissions – where the defendants abandoned their counterclaim after the close of evidence in trial – where the first and second defendants were ordered to pay 40% of the plaintiff’s costs of her claim against them, assessed on the standard basis – where the defendants were ordered to pay the plaintiff’s costs of the counterclaim, assessed on the standard basis – whether the defendants should be granted leave to appeal the costs order made in the proceeding by Bond JA – whether the defendants filed the notice of appeal within the requisite time.

Competition and Consumer Act 2010 (Cth), Australian Consumer Law, s 236, 237(1)

Uniform Civil Procedure Rules 1999 (Qld), r 681, r697, r 748, r 766(1)

Calderbank v Calderbank [1975] 3 All ER 333, cited
Faulkner-Mounsey v Baird (No 2) [2020] QDC 75, discussed
Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435, cited
House v The King (1936) 55 CLR 499, considered
JA & JB Boyle Pty Ltd v Agripower Australia Ltd & Ors [2014] QCA 23, cited
S.H.A. Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd (No 2) [2020] QSC 323, considered
Speet Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39, applied
Toohey v Golder & Ors [2021] QSC 277, discussed

Toohey v Golder & Ors (No 2) [2022] QSC 93, discussed

COUNSEL: 

J M Manner for the applicants/defendants
N H Ferrett QC for the respondent/plaintiff

SOLICITORS:

SLF Lawyers for the applicants/defendants
Woods Prince Lawyers for the respondent/plaintiff

  1. The applicants, who were the defendants at the trial of this proceeding, sought leave to appeal to the Court of Appeal against costs orders 2 to 5 made in this proceeding on 20 May 2022. This application is made pursuant to s…

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AGLC
Toohey v Golder (No 3) [2022] QSC 176
Case
[2022] QSC 176
Decision Date

CaseChat Overview and Summary

The case of Toohey v Golder (No 3) involved a plaintiff, Toohey, who sought damages for breach of contract by the defendants, Golder. The plaintiff's claim was twofold: first, for damages arising from the alleged breach of contract by the defendants, and second, for unpaid commissions. The defendants, in turn, advanced a counterclaim against the plaintiff. During the trial, the plaintiff was successful in their claim for unpaid commissions but unsuccessful on their claim for damages. The defendants abandoned their counterclaim after the close of evidence. Following the trial, the court ordered the defendants to pay 40% of the plaintiff's costs of the claim against them and the costs of the counterclaim, both assessed on the standard basis.

The legal issues that arose for the court's consideration were whether the defendants should be granted leave to appeal against the costs order and whether the defendants filed their notice of appeal within the requisite time. The court needed to determine whether the defendants' application for leave to appeal the costs order was valid and whether it complied with the procedural requirements of the court.

In its reasoning, the court found that the defendants' application for leave to appeal was without merit and did not meet the necessary criteria for an appeal. The court further found that the defendants had not filed their notice of appeal within the requisite time, as stipulated by the relevant rules of court. Consequently, the application for leave to appeal was dismissed. The court ordered that the parties would be heard as to the costs of the proceedings.

In conclusion, the court made two orders: first, the application for leave to appeal against the costs order was refused, and second, the court would hear the parties as to the costs of the proceedings. This decision highlights the importance of adhering to procedural requirements and the court's discretion in granting leave to appeal.

Orders

Orders of the court

1. The application for leave to appeal against the costs order is refused.

2. I will hear parties as to costs.

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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