Velvet Glove Holdings Pty Ltd v Mount Isa Mines Limited (No 3)

[2011] QSC 198

SUPREME COURT OF QUEENSLAND

CITATION:

Velvet Glove Holdings Pty Ltd v Mount Isa Mines Limited (No 3) [2011] QSC 198

PARTIES:

VELVET GLOVE HOLDINGS PTY LTD
ABN 26 057 851 788
 (plaintiff)
v
MOUNT ISA MINES LIMITED
ABN 87 009 661 447

 (defendant)

FILE NO/S:

5306/09

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

1 July 2011

DELIVERED AT:

Brisbane

HEARING DATES:

Written submissions 24, 28 June 2011

JUDGE:

Margaret Wilson J

ORDERS:

That the Plaintiff have leave to appeal against the whole of order 2 of the judgment dated 3 June 2011 (document 48 on the Court file).

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – where plaintiff’s claim dismissed – where plaintiff filed notice of appeal – where order as to costs made – where plaintiff seeks leave to appeal against costs order – whether leave should be granted

COUNSEL:

P J Dunning SC, with D A Quayle, for the plaintiff

J K Bond SC, with S J Armitage, for the defendant

SOLICITORS:

HopgoodGanim Lawyers for the plaintiff

Carter Newell Lawyers for the defendant

1. MARGARET WILSON J:  The plaintiff seeks leave to appeal against a costs order made on 3 June 2011.

1. Section 253 of the Supreme Court Act 1995 (Qld) provides –

"253      What orders shall not be subject to appeal

No order made by any judge of the said court by the consent of parties or as to costs only which by law are left to the discretion of the judge shall be subject to any appeal except by leave of the judge making such order."

1. On 27 April 2011 I dismissed the plaintiff’s claim and otherwise adjourned the proceeding to allow the parties to make written submissions on costs.

1. On 25 May 2011 the plaintiff filed a notice of appeal against the decision dismissing its claim.

1. On 3 June 2011 I made the following order as to costs –

"The plaintiff pay the defendant’s costs of and incidental to the proceeding, including reserved costs, but excluding costs associated with the provision of the kitchen, mess and laundry facilities as pleaded in paragraphs 5, 5A, 6, 7(b) and 8(c) of the amended statement of claim, on the indemnity basis."

1. On 22 June 2011 the parties were informed that I would deal with this application for leave to appeal on the papers, and directed that the parties’ respective submissions not exceed two pages in length.

1. If the appeal against the decision on the substantive dispute succeeds, the Court of Appeal will exercise its own discretion as to any appropriate revision of the costs order without the necessity for leave.[1] I have difficulty in accepting that leave is necessary simply because the costs order was made on a different day from the order on the substantive dispute.

   [1]            AGL Sales (Qld) Pty Ltd v Dawson Sales Pty Ltd [2009] QCA 262, [51].

1. The plaintiff wishes to appeal against the costs order even if its substantive appeal fails. On that scenario, leave is necessary.

1. To obtain leave to appeal against the costs order, the plaintiff must establish an arguable case that, applying the principles in House v the King,[2] the exercise of the discretion as to costs miscarried and will be overturned on appeal.

   [2] (1936) 55 CLR 499.

1. The plaintiff has submitted –

"11. It is thus necessary for the plaintiff to demonstrate a question of principle it wishes to agitate. The questions of principle that arise in relation to the award of the indemnity costs rather than the standard basis costs which the plaintiff wishes to agitate in the Court of Appeal are:

(a) in the case of a dispute regarding the proper construction of a contract the holding of, and persisting at trial with, a differing view as to its proper construction, without more, cannot and will not constitute an unreasonable refusal of an offer to settle in respect of a Calderbank offer; and

(b) the reasons for judgment [c.f. [2011] QSC 156 at [11] – [16]] failed to identify relevant circumstances, and or relied on irrelevant circumstances, to arrive at the conclusion that the refusal of the Calderbank offer was an unreasonable refusal."

1. This does little more than articulate the proposed grounds of appeal against the costs decision, and does not condescend to particularity about the alleged errors in the exercise of the discretion. However, in all the circumstances, and not without some hesitation, I have concluded that it is sufficient to establish an arguable case that the exercise of discretion miscarried.

1. Accordingly, I order as follows –

That the plaintiff have leave to appeal against the whole of order 2 of the judgment dated 3 June 2011 (document 48 on the Court file).