Wharton v Duffy Constructions (QLD) Pty Ltd

The appeal in question involves Bev Wharton as the appellant and Duffy Constructions (QLD) Pty Ltd as the respondent. The original dispute arose in the District Court of Queensland, where the appellant had sought leave to appeal a decision adverse to them. The respondent opposed the appeal on the grounds that it was filed beyond the statutory time limit. The appellant subsequently applied for an extension of time to file the appeal, which was denied. Following this, the appellant applied for indemnity costs to cover the appeal, arguing that exceptional circumstances warranted such an award.

The court was tasked with determining whether the appellant's application for indemnity costs was justified. This involved examining the reasons for the delay in filing the appeal, the merits of the appeal itself, and whether the appellant had acted reasonably in all the circumstances. The court considered the principle that costs should generally follow the event and whether the exceptional circumstances exception applied, which requires a showing of good faith and a sound basis for the appeal.

The court found that the appellant had not acted reasonably in delaying the filing of the appeal. The appellant's reasons for delay were not compelling, and there was no sound basis for the appeal. Consequently, the court held that the appellant should bear the costs of the appeal on an indemnity basis. The court reasoned that the respondent had been prejudiced by the delay, which had caused inconvenience and additional costs.

The orders made by the court required the appellant to pay the respondent's reasonable costs of the application for leave to appeal, to be detailed in an itemised claim. The respondent was directed to deliver this claim by a specified date. If the parties could not agree on the amount of costs within 14 days of the delivery of the claim, the costs were to be assessed by Legal Costs Assessors. The appellant was then required to pay the respondent's costs within 14 days of agreement or assessment.