Vella v Scriha Summary

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

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.

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.

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.

CaseChat Overview and Summary

The matter of Vella v Scriha involved the appellants seeking to depart from the general rule on costs in light of their partial success on appeal. The respondents, in turn, sought an indemnity certificate following the appellants' failure in two out of three appeal grounds. The High Court of Australia was tasked with determining the appropriate allocation of costs in this context. The central legal issue before the Court was whether the appellants, having succeeded on one of their three grounds of appeal, were entitled to a costs order that deviated from the usual rule of indemnity costs being awarded to the respondent in such cases.

The Court considered the principles guiding costs orders in the context of partial success on appeal. It noted that the usual rule imposes indemnity costs on the appellant if they fail in their appeal, except where the Court deems it just to order otherwise. The Court held that while the appellants were not entitled to a costs order as a matter of right, the circumstances warranted a departure from the general rule. The Court found that the respondents' claim to an indemnity certificate was unjust, given the appellants' success on one significant appeal ground, which resulted in a reduction of the respondents' entitlement by almost one-third. The Court concluded that the appellants' success on one of the three grounds was substantial enough to warrant a costs order in their favour.

The High Court ordered that the appellants were to recover their costs of the appeal up to the point of success, and that the respondents were to pay those costs. This decision reflects the Court's discretion to adjust the usual costs rules to achieve a just outcome, taking into account the nature and extent of the parties' success and failure on appeal.

Vella v Scriha

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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