Wilson v Cobble Patch Loganlea Pty Ltd (No. 2)

[2015] QDC 271

DISTRICT COURT OF QUEENSLAND

CITATION:

Wilson v Cobble Patch Loganlea Pty Ltd (No. 2) [2015] QDC 271

PARTIES:

ROBERT JAMES WILSON

(applicant/appellant)

v

COBBLE PATCH LOGANLEA PTY LTD

(respondent)

FILE NO/S:

BD 2842/14

DIVISION:

Civil

PROCEEDING:

Appellate

ORIGINATING COURT:

Magistrates Court at Beenleigh

DELIVERED ON:

5 November 2015

DELIVERED AT:

Brisbane

JUDGE:

Farr SC DCJ

ORDER:

1.   The respondent pay the applicant/appellant’s costs of the Application for Leave to Appeal and the Appeal to be agreed or assessed on the standard basis.

2.   The respondent pay the applicant/appellant’s costs of the application for summary judgment in Action No. 448 of 2013 in the Beenleigh Magistrates Court, on scale F for that Court, to be agreed or assessed.

3.   The respondent is granted leave to make application on 13 October 2015 for the issue of a certificate pursuant to s 15(2) of the Appeal Costs Fund Act 1973.

CATCHWORDS:

COSTS – where costs follow the event – whether an Indemnity Certificate should be issued.

Appeal Costs Fund Act 1973

Uniform Civil Procedure Rules 1999

Wilson v Cobble Patch Loganlea Pty Ltd [2015] QDC 235

Cachia v Isaacs & Ors [1989] NSWCA 31

Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) FCA 536

Mitchell v Pacific Dawn Pty Ltd [2003] QCA 526

Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162549

COUNSEL:

L A Stephens for the applicant/appellant.

SOLICITORS:

Nil for the applicant/appellant.

Alex Mackay & Co. for the respondent.

1. Judgment was delivered in this matter on 24 September 2015.[1]

   [1][2015] QDC 235.

1. The applicant/appellant now seeks an order for costs in the following terms:

(a)        The respondent pay the applicant’s costs of the application for leave to appeal and the appeal to be agreed or assessed.

(b)        The respondent pay the applicant’s costs of and incidental to the respondent’s application for summary judgment in Action No. 448 of 2013 in the Beenleigh Magistrates Court on scale F of that Court to be agreed or assessed.

1. The respondent does not resist an order for costs in favour of the applicant, although it is submitted that it should be in the following terms:

   (a)        The respondent pay the appellant’s costs of the appeal on a standard basis limited to actual out of pocket expenses.

   (b)        The respondent pay the appellant’s costs of the application for summary judgment filed 23 April 2014 on a standard basis on the Magistrates Court scale not over $50,000.

2. The respondent submits that the costs of the appeal should be limited to actual out of pocket expenses because the applicant had not engaged a solicitor for the appeal and his counsel appeared on a direct access brief.  In support of that submission, the respondent relies on the following passage in Cachia v Isaacs & Ors[2] by Samuels JA (with whom Clarke JA agreed) at p 16:

“there is a well established line of authority in England and Australia which establishes the proposition that a litigant in person, who is not a solicitor, is…