Wright v Hamilton Island Enterprises Ltd; ACN 055 389 725 P/L v Hamilton Island Enterprises Ltd

[2003] QCA 118

SUPREME COURT OF QUEENSLAND

CITATION:

Wright & Anor v Hamilton Island Enterprises Ltd;
ACN 055 389 725 P/L & Ors v Hamilton Island Enterprises Ltd [2003] QCA 118

PARTIES:

JACKIE WRIGHT
(first plaintiff/respondent)
PLANLEY PTY LTD ACN 064 736 581
(second plaintiff/respondent)
v
HAMILTON ISLAND ENTERPRISES LIMITED
ACN 009 946 909
(defendant/appellant)

ACN 055 389 725 PTY LTD
(first plaintiff/first respondent)
LOUIS PHERHAD
(second plaintiff/second respondent)
VIVIENNE PHERHAD
(third plaintiff/third respondent)
v
HAMILTON ISLAND ENTERPRISES LIMITED
ACN 009 946 909
(defendant/appellant)

FILE NO/S:

Appeal No 11236 of 2001
SC No 8981 of 1996
SC No 8982 of 1996

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Judgment delivered 14 February 2003
Further Orders delivered 21 March 2003

DELIVERED AT:

Brisbane

HEARING DATE:

5 August 2002

JUDGES:

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

FURTHER ORDERS:

1.  In Appeal No 8981 of 1996:
Allow in part the appeal from the order of Mullins J of 15 November 2001 only to the extent of in para [3] deleting the words "but excluding" and substituting the words "and including"; and
No order as to the costs of the appeal

2.  In Appeal No 8982 of 1996:
Allow in part the appeal from the order of Mullins J of 15 November 2001 only to the extent of in para [3] deleting the words "but excluding" and substituting the words "and including"; and
No order as to the costs of the appeal

CATCHWORDS:

PROCEDURE – COSTS – APPEALS AS TO COSTS – DISCRETION - where respondents contend that the costs orders made at first instance should remain - where appellant seeks an order that the respondents pay the appellant’s costs

Wright v Hamilton Island Enterprises Ltd; ACN 055 389 725 Pty Ltd v Hamilton Island Enterprises Ltd (No 2) [2001] QSC 424

COUNSEL:

P A Keane QC, with D Logan, for the appellant
M D Hinson SC for the respondents

SOLICITORS:

Gadens Lawyers for the appellant
O'Shea Corser & Wadley for the respondents

1. THE COURT:  The appellant seeks an order in each appeal to the effect that the respondents pay the appellant's costs of and incidental to the appeal to be assessed and an order that the respondents pay the appellant's costs of and incidental to the hearing before Mullins J on  30 October 2001 to be assessed.

1. The respondents in each appeal contend that the costs orders made at first instance should remain and the appellant should pay the respondents' costs of each appeal.

1. In her reasons for judgment and subsequent orders delivered on 15 November 2001[1] Mullins J noted:

"Although the [appellant] has been successful in obtaining the discharge of the interlocutory injunction without a perpetual injunction being imposed, that possibility was raised by the [appellant] when the hearing on 30 October 2001 was imminent.  The hearing on 30 October was substantially concerned with the additional matters in respect of which the [appellant] unsuccessfully sought further orders."[2]

[1]Wright v Hamilton Island Enterprises Ltd (No 2);ACN 055 389 725 Pty Ltd v Hamilton Island Enterprises Ltd (No 2) [2001] QSC 424.

[2]At para [52].

1. Her Honour made no order as to the costs of the hearing of 30 October 2001.  The appellant in each action was successful in obtaining on appeal the orders it unsuccessfully argued for on 30 October 2001 and which took up the substantial part of that hearing.  In those circumstances, the appellant should now have its costs to be assessed of the hearing of 30 October 2001.

1. As to the costs of each appeal, the appellant was unsuccessful on the major question of estoppel; although the appellant was successful on the collateral contract issue, this had no practical benefit to the appellant, having lost its appeal against the finding of estoppel.  On the other hand, the appellant was successful in obtaining the orders for declarations that it sought before Mullins J at the hearing on 30 October 2001; it seems that had the respondents agreed to those orders when first proposed by the appellant there may have been no appeal and no hearing of 30 October 2001.  In those circumstances, there should be no order as to the costs of the appeal.

1. Further orders:

In Appeal No 8981 of 1996:

1.          Allow in part the appeal from the order of Mullins J of 15 November 2001 only to the extent of in para [3] deleting the words "but excluding" and substituting the words "and including".

2.          No order as to the costs of the appeal.

In Appeal No 8982 of 1996:

1.          Allow in part the appeal from the order of Mullins J of 15 November 2001 only to the extent of in para [3] deleting the words "but excluding" and substituting the words "and including".

2.          No order as to the costs of the appeal.