Vella v Scriha

[2002] QCA 168

SUPREME COURT OF QUEENSLAND

CITATION:

Vella & Anor v Scriha & Ors [2002] QCA 168

PARTIES:

KENNETH ALLAN VELLA
(first plaintiff/appellant)
RICHARD CHARLES VELLA
(second plaintiff/appellant)
v
JOSEPH JAMES SCRIHA
(first defendant/respondent)
MARY ANN SCRIHA
(second defendant/respondent)
ANTHONY JOSEPH SCRIHA
(third defendant/respondent)
RITA MARIA SCRIHA
(fourth defendant/respondent)

FILE NO/S:

Appeal No  4925 of 2001

DC No 77 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

Judgment delivered on 23 April 2002

Further Order delivered 17 May 2002

DELIVERED AT:

Brisbane

HEARING DATE:

6 March 2002

JUDGES:

McMurdo P, Davies JA and Philippides J

Further Order of the Court

FURTHER ORDER:

1. That the respondents pay two-thirds of the appellants’ costs of the appeal to be assessed; and
2. That the cross-appeal be dismissed, with the appellants’ costs of that cross-appeal to be paid by the respondents.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – OTHER CASES – FAILURE IN PORTION OF CASE – where judgment in the appeal already given – where further order as to costs sought – where  appellants were successful in one of three appeal grounds – where respondents sought indemnity certificate

Appeal Costs Fund Act 1973 (Qld)

COUNSEL:

P E Hack SC for appellants
P O Land for respondents

SOLICITORS:

Macrossan & Amiet (Mackay) for appellants
S R Wallace & Wallace (Mackay) for respondents

1. THE COURT: The appellants were successful in this appeal and the parties were given 14 days to file submissions as to costs. The respondents request an indemnity certificate under the Appeal Costs Fund Act 1973. We are not satisfied that there are sufficient grounds in this case to warrant the granting of such a certificate.

1. The respondents also contend that any costs awarded against them should be limited because all but one ground of appeal failed and, in addition, the conduct of the appellants necessitated a larger record than would otherwise have been necessary. There is some merit in this contention.

1. In the circumstances, the appropriate order is that:

(a)        the respondents pay two-thirds of the appellants’ costs of the appeal to be assessed; and

(b)        the cross-appeal which was not pursued be dismissed, with the appellants’ costs of that cross-appeal to be paid by the respondents.