Wright & Anor v. Keenfilly P/L & Anor - [2007] QCA 148

SUPREME COURT OF QUEENSLAND

CITATION:

Wright & Anor v Keenfilly P/L & Anor [2007] QCA 148

PARTIES:

DAVID WRIGHT and SHARON WRIGHT trading as RARE IMPORT/EXPORT CO
(plaintiff/respondent)
v
KEENFILLY PTY LTD
(ACN 056 014 352)
(first defendant/first appellant)
MARK CARY
(second defendant/second appellant)

FILE NO/S:
Appeal No 9031 of 2006

DC No 4380 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal - Further Order

ORIGINATING COURT:

District Court in Brisbane

DELIVERED ON:

Judgment delivered 23 March 2007

Further Order delivered 4 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

28 February 2007

JUDGES:

McMurdo P, Holmes JA and Mackenzie J
Judgment of the Court

FURTHER
ORDER:
1. The appellants pay the respondents’ costs of and incidental to the appeal on the standard basis

2. The coversheet of and the reasons for the judgment of the Court delivered 23 March 2007 are amended by deleting Rare Import Export Co Pty Ltd and inserting in lieu thereof, wherever it appears, Keenfilly Pty Ltd

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY – where respondents successful on appeal – where respondents apply for costs on indemnity basis – where judgement sum of the lower court exceeded offer to settle – where lower court judge awarded costs on indemnity basis – where appellant made offer to settle between trial and appeal hearing – where counter-offers were made and rejected – whether appeal was unreasonably instituted – whether the Court should depart from the ordinary practice of awarding costs on the standard basis
PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – OTHER CASES – where appellant changed business name prior to the claim and appeal being instituted – where respondent applies for amendment of proceedings to reflect change

Uniform Civil Procedure Rules 1999 (Qld), r 360, r 361, r 375 (3), r 704

Ballesteros v Chidlow & Anor [2006] QCA 368; Appeal No 9344 of 2005, further order delivered 22 September 2006, distinguished
Deepcliffe P/L & Anor v The Council of the City of Gold Coast & Anor [2001] QCA 396; Appeal No 10673 of 2000, further order delivered 25 September 2001, considered
Grice v State of Qld[2005] QCA 298; Appeal No 10818 of 2004, further order delivered 19 August 2005, distinguished
Ibbs v Woodrow & Anor[2002] QCA 298; Appeal No 11536 of 2001, further order delivered 16 August 2002, considered
Kendall v Kendall & Ors [2005] QCA 390; Appeal No 3004 of 2005, 11 October 2005, considered
Tamwoy v Solomon[1995] QCA 447; [1996] 2 Qd R 93, considered
Tector v FAI General Insurance Co Ltd[2000] QCA 426; [2001] 2 Qd R 463, considered
Valleyfield P/L v Primac Ltd & Anor[2003] QCA 398, Appeal No 3605 of 2002, further order delivered 12 September 2003, considered

COUNSEL:

K C Fleming QC, with P F Mylne, for the appellant
H Fraser QC, with G D O’Sullivan,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] QCA 148
Decision Date: 4 May 2007

CaseChat Overview and Summary

The case of Wright & Anor v. Keenfilly P/L & Anor involved an appeal against a decision made in the lower court. The respondents were successful on appeal and applied for costs on an indemnity basis. The lower court had awarded costs on an indemnity basis, and the judgement sum exceeded the offer to settle made by the appellant between the trial and appeal hearing. The appellant had made an offer to settle, which was rejected, followed by counter-offers that were also rejected. The central legal issues were whether the appeal was unreasonably instituted and whether the court should depart from the ordinary practice of awarding costs on the standard basis.

The court considered the nature of the dispute and the circumstances surrounding the offer to settle. It held that the appeal was not unreasonably instituted, as the respondents had a reasonable basis for proceeding with the appeal. The court also noted that the offer to settle was made after the trial and before the appeal hearing, and the counter-offers were made during the appeal process. The court emphasised that the ordinary practice of awarding costs on the standard basis should be followed, unless there are exceptional circumstances that justify an award on an indemnity basis.

In light of the above, the court determined that the respondents were entitled to costs of and incidental to the appeal on the standard basis. The court further ordered that the coversheet and reasons for the judgment delivered on 23 March 2007 be amended by deleting Rare Import Export Co Pty Ltd and inserting Keenfilly P/L, wherever it appeared. The final orders required the appellants to pay the respondents' costs of and incidental to the appeal on the standard basis and mandated the amendment of the coversheet and judgment reasons to reflect the change in the respondent's business name.

Orders

Orders of the court

1. The appellants pay the respondents’ costs of and incidental to the appeal on the standard basis

2. The coversheet of and the reasons for the judgment of the Court delivered 23 March 2007 are amended by deleting Rare Import Export Co Pty Ltd and inserting in lieu thereof, wherever it appears, Keenfilly Pty Ltd

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Wright & Anor v Keenfilly P/L & Anor [2007] QCA 148
PARTIES:	DAVID WRIGHT and SHARON WRIGHT trading as RARE IMPORT/EXPORT CO (plaintiff/respondent) v KEENFILLY PTY LTD (ACN 056 014 352) (first defendant/first appellant) MARK CARY (second defendant/second appellant)
FILE NO/S:	Appeal No 9031 of 2006 DC No 4380 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal - Further Order
ORIGINATING COURT:	District Court in Brisbane
DELIVERED ON:	Judgment delivered 23 March 2007 Further Order delivered 4 May 2007
DELIVERED AT:	Brisbane
HEARING DATE:	28 February 2007
JUDGES:	McMurdo P, Holmes JA and Mackenzie J Judgment of the Court
FURTHER ORDER:	1. The appellants pay the respondents’ costs of and incidental to the appeal on the standard basis 2. The coversheet of and the reasons for the judgment of the Court delivered 23 March 2007 are amended by deleting Rare Import Export Co Pty Ltd and inserting in lieu thereof, wherever it appears, Keenfilly Pty Ltd
CATCHWORDS:	PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY – where respondents successful on appeal – where respondents apply for costs on indemnity basis – where judgement sum of the lower court exceeded offer to settle – where lower court judge awarded costs on indemnity basis – where appellant made offer to settle between trial and appeal hearing – where counter-offers were made and rejected – whether appeal was unreasonably instituted – whether the Court should depart from the ordinary practice of awarding costs on the standard basis PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – OTHER CASES – where appellant changed business name prior to the claim and appeal being instituted – where respondent applies for amendment of proceedings to reflect change Uniform Civil Procedure Rules 1999 (Qld), r 360, r 361, r 375 (3), r 704 Ballesteros v Chidlow & Anor [2006] QCA 368; Appeal No 9344 of 2005, further order delivered 22 September 2006, distinguished Deepcliffe P/L & Anor v The Council of the City of Gold Coast & Anor [2001] QCA 396; Appeal No 10673 of 2000, further order delivered 25 September 2001, considered Grice v State of Qld[2005] QCA 298; Appeal No 10818 of 2004, further order delivered 19 August 2005, distinguished Ibbs v Woodrow & Anor[2002] QCA 298; Appeal No 11536 of 2001, further order delivered 16 August 2002, considered Kendall v Kendall & Ors [2005] QCA 390; Appeal No 3004 of 2005, 11 October 2005, considered Tamwoy v Solomon[1995] QCA 447; [1996] 2 Qd R 93, considered Tector v FAI General Insurance Co Ltd[2000] QCA 426; [2001] 2 Qd R 463, considered Valleyfield P/L v Primac Ltd & Anor[2003] QCA 398, Appeal No 3605 of 2002, further order delivered 12 September 2003, considered
COUNSEL:	K C Fleming QC, with P F Mylne, for the appellant H Fraser QC, with G D O’Sullivan,…