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Yara Nipro Pty Ltd v Interfert Australia Pty Ltd

Yara Nipro Pty Ltd v Interfert Australia Pty Ltd

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Case Copied 25 June 2010 17 min read

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SUPREME COURT OF QUEENSLAND

CITATION:

Yara Nipro P/L v Interfert Australia P/L [2010] QCA 164

PARTIES:

INTERFERT AUSTRALIA PTY LTD
ACN 112 758 666
(defendant/appellant/cross respondent)
v
YARA NIPRO PTY LTD
ACN 066 700 276
(plaintiff/respondent/cross appellant)
v
COSIMO UBALDINO
(third party/not party to the appeal)

FILE NO/S:

Appeal No 12074 of 2009
Appeal No 2349 of 2010
SC No 8849 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Judgment delivered 28 May 2010
Further Orders delivered 25 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

19 April 2010

JUDGES:

Muir and Fraser JJA and Ann Lyons J
Judgment of the Court

ORDERS:

Vary paragraphs a), b) and c) of order 2 of the orders made on 28 May 2010 so that the orders of the Court, as so varied, provide:

Dismiss the appeal in Appeal No 12074 of 2009. 1.

Allow the cross appeal in Appeal No 12074 of 2009, set aside the orders made by the trial judge on 30 September 2009 dismissing the plaintiff’s claim and giving judgment for the defendant on the counterclaim for $77,058.65 and the order made by the trial judge on 5 February 2010 ordering the plaintiff to pay the defendant’s costs upon the claim and counterclaim, and instead order that:2.

The defendant is to pay the plaintiff $1,040,133.08;a)

The defendant is to pay the plaintiff’s costs of the claim, to be assessed on the indemnity basis;b)

The counterclaim is dismissed with costs to be assessed on the standard basis.c)

The appellant/cross respondent is to pay the respondent/cross appellant’s costs of the appeal and cross appeal in Appeal No 12074 of 2009, to be assessed on the standard basis. 3.

The appeal in Appeal No 2349 of 2010 against the order refusing leave to appeal made by the trial judge on 5 March 2010 is dismissed with costs to be assessed on the standard basis. 4.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY – where the respondent/cross appellant seeks the costs of the claim and counterclaim in the trial division and the costs of the appeal and cross appeal on the indemnity basis – where costs are sought on the grounds that the respondent/cross appellant obtained a judgment no less favourable than an offer made before trial – where the appellant/cross respondent submits that it pay the costs of the appeal, cross appeal and counterclaim, and the costs of the claim not referrable to its defence of the Trade Practices Act 1974 (Cth) claim – where the appellant/cross respondent opposes the application for the costs on the indemnity basis and submits that rule 360 Uniform Civil Procedure Rules 1999 (Qld) is not applicable in the appeal and that its refusal of the offer before trial was reasonable in the circumstances – whether the respondent/cross appellant should have its costs of the claim and counterclaim on…

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: [2010] QCA 164
Decision Date: 25 June 2010

CaseChat Overview and Summary

Yara Nipro Pty Ltd initiated legal proceedings against Interfert Australia Pty Ltd, seeking relief related to a contractual dispute and counterclaims. The case was heard in the Queensland Court of Appeal. The primary issue before the court was the allocation of costs, with the respondent/cross appellant arguing for costs on the indemnity basis, asserting that they had secured a judgment no less favourable than a pre-trial offer. In contrast, the appellant/cross respondent contended that it should pay the costs of the appeal, cross appeal, and counterclaim, excluding those costs related to its defence against the Trade Practices Act 1974 (Cth) claim. Additionally, the appellant opposed the indemnity basis for costs, asserting that the refusal of the pre-trial offer was reasonable and that rule 360 of the Uniform Civil Procedure Rules 1999 (Qld) did not apply in the appeal context.

The court considered the principle that costs generally follow the event, meaning that the unsuccessful party typically bears the costs of the litigation. However, it also examined the circumstances under which costs could be awarded on an indemnity basis, which is a higher standard of costs recovery. The court found that the respondent/cross appellant was entitled to costs on the indemnity basis for the claim and counterclaim due to the favourable judgment they secured. Regarding the appeal and cross appeal, the court determined that the costs should be assessed on the standard basis, not the indemnity basis, as the appellant/cross respondent had some success in its arguments. Consequently, the court dismissed the appeal, allowed the cross appeal, and ordered the appellant/cross respondent to pay the respondent/cross appellant's costs of the appeal and cross appeal on the standard basis.

The court's final orders included dismissing the appeal, allowing the cross appeal, and setting aside the trial judge's orders that dismissed the plaintiff's claim and gave judgment to the defendant on the counterclaim. Instead, the court ordered the defendant to pay the plaintiff a specified amount, the plaintiff's costs of the claim on the indemnity basis, and dismissed the counterclaim with costs on the standard basis. Additionally, the court dismissed the appeal against the order refusing leave to appeal, ordering the appellant/cross respondent to pay the respondent/cross appellant's costs of the appeal and cross appeal on the standard basis.

Orders

Orders of the court

Vary paragraphs a), b) and c) of order 2 of the orders made on 28 May 2010 so that the orders of the Court, as so varied, provide:

Dismiss the appeal in Appeal No 12074 of 2009. 1.

Allow the cross appeal in Appeal No 12074 of 2009, set aside the orders made by the trial judge on 30 September 2009 dismissing the plaintiff’s claim and giving judgment for the defendant on the counterclaim for $77,058.65 and the order made by the trial judge on 5 February 2010 ordering the plaintiff to pay the defendant’s costs upon the claim and counterclaim, and instead order that:2.

The defendant is to pay the plaintiff $1,040,133.08;a)

The defendant is to pay the plaintiff’s costs of the claim, to be assessed on the indemnity basis;b)

The counterclaim is dismissed with costs to be assessed on the standard basis.c)

The appellant/cross respondent is to pay the respondent/cross appellant’s costs of the appeal and cross appeal in Appeal No 12074 of 2009, to be assessed on the standard basis. 3.

The appeal in Appeal No 2349 of 2010 against the order refusing leave to appeal made by the trial judge on 5 March 2010 is dismissed with costs to be assessed on the standard basis. 4.

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:	Yara Nipro P/L v Interfert Australia P/L [2010] QCA 164
PARTIES:	INTERFERT AUSTRALIA PTY LTD ACN 112 758 666 (defendant/appellant/cross respondent) v YARA NIPRO PTY LTD ACN 066 700 276 (plaintiff/respondent/cross appellant) v COSIMO UBALDINO (third party/not party to the appeal)
FILE NO/S:	Appeal No 12074 of 2009 Appeal No 2349 of 2010 SC No 8849 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Orders
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	Judgment delivered 28 May 2010 Further Orders delivered 25 June 2010
DELIVERED AT:	Brisbane
HEARING DATE:	19 April 2010
JUDGES:	Muir and Fraser JJA and Ann Lyons J Judgment of the Court
ORDERS:	Vary paragraphs a), b) and c) of order 2 of the orders made on 28 May 2010 so that the orders of the Court, as so varied, provide: Dismiss the appeal in Appeal No 12074 of 2009. 1. Allow the cross appeal in Appeal No 12074 of 2009, set aside the orders made by the trial judge on 30 September 2009 dismissing the plaintiff’s claim and giving judgment for the defendant on the counterclaim for $77,058.65 and the order made by the trial judge on 5 February 2010 ordering the plaintiff to pay the defendant’s costs upon the claim and counterclaim, and instead order that:2. The defendant is to pay the plaintiff $1,040,133.08;a) The defendant is to pay the plaintiff’s costs of the claim, to be assessed on the indemnity basis;b) The counterclaim is dismissed with costs to be assessed on the standard basis.c) The appellant/cross respondent is to pay the respondent/cross appellant’s costs of the appeal and cross appeal in Appeal No 12074 of 2009, to be assessed on the standard basis. 3. The appeal in Appeal No 2349 of 2010 against the order refusing leave to appeal made by the trial judge on 5 March 2010 is dismissed with costs to be assessed on the standard basis. 4.
CATCHWORDS:	PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY – where the respondent/cross appellant seeks the costs of the claim and counterclaim in the trial division and the costs of the appeal and cross appeal on the indemnity basis – where costs are sought on the grounds that the respondent/cross appellant obtained a judgment no less favourable than an offer made before trial – where the appellant/cross respondent submits that it pay the costs of the appeal, cross appeal and counterclaim, and the costs of the claim not referrable to its defence of the Trade Practices Act 1974 (Cth) claim – where the appellant/cross respondent opposes the application for the costs on the indemnity basis and submits that rule 360 Uniform Civil Procedure Rules 1999 (Qld) is not applicable in the appeal and that its refusal of the offer before trial was reasonable in the circumstances – whether the respondent/cross appellant should have its costs of the claim and counterclaim on…