Tsang v Harle [No 2] - [2023] QCA 58

SUPREME COURT OF QUEENSLAND

CITATION:

Tsang v Harle [No 2] [2023] QCA 58

PARTIES:

EDER TSANG
(applicant)
v
RICHARD CRAIG HARLE
(respondent)

FILE NO/S:

Appeal No 7668 of 2022
DC No 2920 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil) – Further Order

ORIGINATING COURT:

District Court at Brisbane – [2022] QDC 138 (Porter KC DCJ)

DELIVERED ON:

31 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

McMurdo and Dalton JJA and Gotterson AJA

ORDER:

The Applicant pay the Respondent’s costs of the application for leave to appeal on the indemnity basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – POWER TO ORDER – where the respondent sought an order pursuant to r 703(1) of the Uniform Civil Procedure Rules 1999 (UCPR) that the applicant pay his costs of the application on the indemnity basis – where the applicant has filed neither affidavit material nor written submissions with respect to costs – where the prospects of obtaining leave to appeal were poor – where the respondent made an offer to settle the application in accordance with Chapter 9 Part 5 of the UCPR – whether the respondent should be awarded costs on the indemnity basis

Uniform Civil Procedure Rules 1999 (Qld), r 703(1)

Westpac Banking Corporation v Jamieson & Ors[2015] QCA 84, cited

COUNSEL:

No appearance for the applicant
R J Anderson KC for the respondent, the respondent’s submissions were heard on the papers

SOLICITORS:

No appearance for the applicant
Bennett & Philp Lawyers for the respondent

McMURDO JA: I agree with Gotterson AJA.
DALTON JA: I agree with the order proposed by Gotterson AJA and with his reasons.
GOTTERSON AJA: Leave to appeal in this matter was refused by order made on 10 March 2023. At that time, the parties were ordered to file and serve any affidavit material on which they proposed to rely with respect to costs of the application within seven days from that date and file and serve written submissions with respect to the same within 14 days therefrom.
The Respondent, Mr Harle, has complied with these latter orders. The Applicant, Mr Tsang, has filed neither affidavit material nor written submissions.
The order sought by the Respondent is an order pursuant to r 703(1) of the Uniform Civil Procedure Rules 1999 (UCPR) that the Applicant pay his costs of the application on the indemnity basis.
Whilst the discretion conferred by that rule is expressed in unqualified terms, it is well accepted that in order to exercise it, particular circumstances justifying a departure from the usual order for costs on the standard basis need exist. In Westpac Banking Corporation v Jamieson & Ors,[1] this Court described such circumstances as being where the conduct of an appeal by a party had been plainly unreasonable or where special or unusual features warranted a departure from the usual course.
[1][2015] QCA 84 at [9] per…

Grounds of appeal

[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.

Continue reading Tsang v Harle [No 2]

Details

AGLC: Tsang v Harle [No 2] [2023] QCA 58
Case: [2023] QCA 58
Decision Date: 31 March 2023

CaseChat Overview and Summary

This case involved a dispute between the applicant, Tsang, and the respondent, Harle, in the context of civil proceedings in the state court. The primary issue was whether the respondent should be awarded indemnity costs under r 703(1) of the Uniform Civil Procedure Rules 1999 (UCPR) for an application for leave to appeal, given the applicant's failure to provide affidavit material or written submissions regarding the costs and the poor prospects of obtaining leave to appeal. Additionally, the court considered whether the respondent's offer to settle the application under Chapter 9 Part 5 of the UCPR impacted the determination of costs.

The court examined the application of r 703(1) of the UCPR, which grants the court the power to order indemnity costs in appropriate circumstances. The primary focus was on the applicant's failure to file affidavit material or written submissions regarding costs and the lack of prospects for leave to appeal. The court also considered the respondent's offer to settle the application, which may have been a factor in the decision-making process. Ultimately, the court found that the respondent's failure to provide evidence in response to the application, coupled with the poor prospects of success, justified the imposition of indemnity costs.

The court ruled in favour of the respondent, ordering that the applicant pay the respondent's costs of the application for leave to appeal on the indemnity basis. The decision was based on the applicant's failure to file relevant material and the poor prospects of obtaining leave to appeal, along with the respondent's offer to settle the application. The court emphasised the importance of providing appropriate submissions and evidence when dealing with applications for leave to appeal.

No additional orders were made beyond the requirement for the applicant to pay the respondent's costs of the application for leave to appeal on the indemnity basis. This decision highlights the importance of providing adequate evidence and submissions in civil proceedings, particularly in applications for leave to appeal, and the potential consequences of failing to do so.

Orders

Orders of the court

The Applicant pay the Respondent’s costs of the application for leave to appeal on the indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Tsang v Harle [No 2] [2023] QCA 58
PARTIES:	EDER TSANG (applicant) v RICHARD CRAIG HARLE (respondent)
FILE NO/S:	Appeal No 7668 of 2022 DC No 2920 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil) – Further Order
ORIGINATING COURT:	District Court at Brisbane – [2022] QDC 138 (Porter KC DCJ)
DELIVERED ON:	31 March 2023
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	McMurdo and Dalton JJA and Gotterson AJA
ORDER:	The Applicant pay the Respondent’s costs of the application for leave to appeal on the indemnity basis.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – POWER TO ORDER – where the respondent sought an order pursuant to r 703(1) of the Uniform Civil Procedure Rules 1999 (UCPR) that the applicant pay his costs of the application on the indemnity basis – where the applicant has filed neither affidavit material nor written submissions with respect to costs – where the prospects of obtaining leave to appeal were poor – where the respondent made an offer to settle the application in accordance with Chapter 9 Part 5 of the UCPR – whether the respondent should be awarded costs on the indemnity basis Uniform Civil Procedure Rules 1999 (Qld), r 703(1) Westpac Banking Corporation v Jamieson & Ors[2015] QCA 84, cited
COUNSEL:	No appearance for the applicant R J Anderson KC for the respondent, the respondent’s submissions were heard on the papers
SOLICITORS:	No appearance for the applicant Bennett & Philp Lawyers for the respondent