Westpac Banking Corporation v Pattison

[1994] QCA 585

IN THE COURT OF APPEAL	[1994] QCA 585
SUPREME COURT OF QUEENSLAND

Appeal No. 271 of 1993.

Brisbane

[Westpac v. Pattison & Anor.]

BETWEEN:

THOMAS EDGAR PATTISON

(First Plaintiff) First Respondent

AND:

KERRY ANN PATTISON

(Second Plaintiff) Second Respondent

AND:

PELHAM PASTORAL COMPANY PTY LTD

(Third Plaintiff) Third Respondent

AND:  WESTPAC BANKING CORPORATION
(A.R.B.N. 007-457-141)

(Defendant) Appellant

____________________________________________________________
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Pincus J.A. Davies J.A. Ambrose J.

____________________________________________________________
_____

Judgment delivered 13/09/1994 Further Order made 14/12/1994

Order of the Court
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_____

RESPONDENTS TO PAY APPELLANT'S COSTS OF THE APPEAL TO BE
TAXED.
COSTS OF THE PROCEEDINGS BEFORE THE PRIMARY JUDGE TO BE
APPELLANT'S COSTS IN ANY EVENT.
____________________________________________________________

_____

CATCHWORDS:	APPEAL AND NEW TRIAL - Costs - Interlocutory injunction granted to mortgagors restraining mortgagee from acting against them set aside on appeal - whether appellants should be limited to costs of setting aside injunction before primary judge rather than costs of appealing - whether indemnity certificate should be granted - whether appellant's costs before primary judge should be its costs in any event.
Counsel:	R. V. Hanson Q.C. and J. Sheahan for the appellant. A.J.H. Morris Q.C. for the respondent.
Solicitors:	Fees Ruthning for the appellant. Barrett Wherry for the respondent.

Hearing date: 16 August 1994.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 271 of 1993.

Brisbane

[Westpac v. Pattison & Anor.]

Before	Pincus J.A. Davies J.A. Ambrose J.
BETWEEN:

THOMAS EDGAR PATTISON

(First Plaintiff) First Respondent

AND:

KERRY ANN PATTISON

(Second Plaintiff) Second Respondent

AND:

PELHAM PASTORAL COMPANY PTY LTD

(Third Plaintiff) Third Respondent

AND:  WESTPAC BANKING CORPORATION
(A.R.B.N. 007-457-141)

(Defendant) Appellant

REASONS FOR FURTHER ORDER - THE COURT

Further Order delivered 14/12/1994

This appeal was allowed on 13 September last; the appellant bank succeeded in having set aside an interlocutory injunction restraining exercise of its powers as mortgagee. The parties were invited to make written submissions on the question of costs, and have done so.

The appellant has contended that the costs before this
Court and before the primary judge should follow the event.
The respondents argue for an order for an indemnity
certificate under the Appeal Costs Fund Act 1973 with
respect to the costs of the appeal, and also contend that
any order for costs in favour of the appellant should be
limited to costs which would have been incurred had the
appellant applied to set aside the injunction before a
chamber judge. Further, the respondents ask for an order
that any costs ordered to be paid by them not be taxed until
final judgment is given in the action.

It seems clear that the appellant is entitled to the costs of the appeal. The suggestion that its having chosen to appeal rather than take another course disentitles the appellant has no substance. Disposition of the costs before the primary judge is a more difficult matter. Although it has been held that an interlocutory injunction should not have been granted the reasons for that were not solely concerned with assessment of the strength or weakness of the respondent's cause of action; consideration of the balance of convenience and of the rule with respect to payment into court of the sum sworn to be due played their part in the result. This Court has not determined that the appellant must succeed at the trial; of course the evidence there adduced will almost certainly be fuller than that which was before this Court.

But, as the appellant says, it was entitled to succeed before the primary judge; the proper course in the whole of the circumstances is to order that those costs be the appellant's costs in any event, with the result that, when a final order for costs is made in the suit, the appellant will be entitled to tax them against the respondents irrespective of the result of the suit.

The question whether the respondents should have a certificate under the Appeal Costs Fund Act 1973 depends in the first place on whether the appeal succeeded "on a question of law". Despite the argument to the contrary put forward on behalf of the respondents, it seems to us that this would not be an accurate description of the result of the case; it is true that questions of law arose, but their resolution did not play any substantial part in the outcome.

In our view there is no power in the Court to grant an

indemnity certificate under the Act.

The orders with respect to costs will therefore be that the respondents pay the appellant's costs of the appeal to be taxed and that the costs of the proceedings before the primary judge be the appellant's costs in any event.