Carter Capner Law v Clift & Ors [2020] QCA 202

SUPREME COURT OF QUEENSLAND CITATION: Carter Capner Law v Clift & Ors [2020] QCA 202 PARTIES: CARTER CAPNER LAW ABN 65 600 423 881 (appellant) v SEAN CLIFT (first respondent) GARY ERWIN (second respondent) STEVEN PATTEN (third respondent) SUZANNE RUSSELL (fourth respondent) LANA SCHEUBER (fifth respondent) FILE NO/S: Appeal No 4446 of 2019 SC No 8846 of 2018 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal – Further Orders ORIGINATING COURT: Supreme Court at Brisbane – [2019] QSC 78 (Bond J) DELIVERED ON: 15 September 2020 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers JUDGES: Fraser and Philippides JJA and Crow J ORDERS: 1. The respondents pay the appellant’s costs of the issue in the appeal about the delivery of a report or an itemised bill of costs, including the appellant’s costs of its application to adduce evidence in the appeal. 2. The appellant pay the respondents’ costs of the issue in the appeal about the validity of the costs agreements. 3. If the parties are unable to agree about the appropriate orders relating to costs in the Trial Division (including as to the appropriateness of an amendment to the notice of appeal upon that topic), the parties have leave to lodge with the registry and serve within fourteen days of publication of these reasons written submissions upon that topic, such submissions not to exceed two A4 pages unless otherwise ordered by the Court, a judge of appeal or registrar. -- 1 of 5 -- 2 CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – UNREASONABLE REFUSAL OF OFFER – where the appellant relies upon an offer to settle the proceedings in the Trial Division made in a letter sent after the application was argued but before judgment was given – whether the offer to settle the proceedings in the Trial Division should be taken into account in relation to the costs of the appeal – whether the offer should be regarded as influential in relation to the costs in the Trial Division PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – GENERALLY – where the primary judge made a declaration that costs agreements between the appellant and each respondent were void and an order requiring the appellant to deliver an itemised bill of costs to each respondent – where the appellant succeeded on appeal in relation to the bill of costs issue but not the costs agreement issue – where the appellant argues it should recover its costs relating to the bill of costs issue and the respondents should recover their costs relating to the costs agreement issue – where the respondents contend there should be no order as to costs on the bill of costs issue – whether the appellant should recover its costs on the bill of costs issue PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – APPEALS AS TO COSTS – OTHER MATTERS – where the appellant seeks its costs in relation to the bill of costs issue both in the Trial Division and on appeal – where the respondents argue that the costs order in the Trial Division should not be disturbed as the appellant did not specify in its notice of appeal that it was appealing against that order – whether the notice of appeal should be amended to refer to the costs order in the Trial Division – whether the appellant should recover its costs in relation to the bill of costs issue in the Trial Division Uniform Civil Procedure Rules 1999 (Qld), r 744, r 747 COUNSEL: K Wilson QC for the appellant N Ferrett QC, with S Anderson, for the respondents SOLICITORS: Carter Capner Law for the appellant Compensation Partners Lawyers for the respondents [1] FRASER JA: The appellant’s appeal failed upon one issue (the challenge to the declaration made by Bond J that the costs agreements between the appellant and each respondent are void) but succeeded upon the other issue (the challenge to the order -- 2 of 5 -- 3 requiring the appellant to deliver an itemised bill of costs to each respondent).1 The parties have made submissions about costs pursuant to leave granted to them for that purpose. [2] The appellant relies upon an offer in a letter marked “without prejudice” sent after the application was argued in the Trial Division, but before judgment, by which the appellant offered to settle the proceedings. That offer in terms related only to, and it was expressed to expire before the conclusion of, the then current proceedings in the Trial Division. I would not take it into account in relation to the costs of the appeal. I also would not regard the offer as influential in relation to the costs in the Trial Division for the different reasons that it was capable of acceptance only if all of the respondents accepted it and acceptance of the offer would have imposed additional obligations upon the respondents. It is not necessary to discuss the respondents’ additional argument that the offer is inadmissible because it is marked “without prejudice” without a reservation that the appellant might rely upon it in relation to the appropriate costs order.2 [3] The appellant makes the alternative submission that, both on appeal and at first instance, the appellant should recover its costs relating to the bill of costs issue, upon which it succeeded, and the respondents should recover their costs upon the costs agreement issue, upon which they succeeded. [4] In relation to the costs of the appeal, the respondents accept that it is appropriate to make orders about the costs of the appeal by reference to the separate issues but the respondents contend that there should be no order as to costs on the issue upon which the appellant succeeded: (a) The respondents argue that upon the delivery by the appellant of a lump sum bill of costs the respondents would have been entitled to insist upon the appellant supplying itemised bills, so that the appellant’s success in resisting the respondents’ claim for an itemised bill before the appellant delivered a lump sum bill was merely a deferment, the appellant’s success was a “Pyrrhic victory”, and the costs agreement issue was the focus of the litigation and in various other ways more significant than the bill of costs issue. The relative extent or significance of the separate issues is irrelevant where costs are to be awarded according to the results upon those issues. (b) The respondents argue that: the respondents had a need for identification of the lump sum amount that would be owed to the appellant, which would be satisfied by delivery of an itemised bill; in the Trial Division the appellant withdrew its application to adduce new evidence about the bill of costs issue; the appellant’s success upon the itemised bill issue depended upon the admission of the new evidence on appeal; and the argument put by the appellant on appeal should have been made in the Trial Division. Those arguments are inconsistent with the Court’s reasons for allowing the appeal upon the bill of costs issue.3 [5] There is an obvious tension between the respondents’ arguments for depriving the appellant of the costs of the discrete issue upon which it succeeded and the effort the respondents expended in seeking and defending the order made by Bond J in their 1 Carter Capner Law v Clift & Ors [2020] QCA 125. 2 See Calderbank v Calderbank [1976] Fam 93 and Johns Perry Industries Pty Ltd v International Rigging (Aust) Pty Ltd [1988] 2 Qd R 556. 3 See in particular [2020] QCA 125 at [50] – [55], [63]. -- 3 of 5 -- 4 favour; before the appellant was entitled to deliver or had delivered any bill of costs,4 the respondents applied for the order requiring the appellant to deliver a written report about its costs, subsequently applied at the hearing for the different order requiring the appellant to deliver an itemised bill of costs, argued for that order, and resisted the appellant’s appeal against that order. None of the respondents’ many arguments supplies a legitimate reason for depriving the appellant of the costs of the issue upon which it succeeded. [6] In cases of this kind orders about costs in the Trial Division ordinarily mirror the orders about the costs of the appeal. The respondents argue, however, that the order about costs in the Trial Division should not be disturbed because of the absence of an appeal against that order. If the Court is minded to make any such order, the respondents seek an opportunity to make submissions about it. [7] In conformity with the requirement that a notice of appeal must state “the whole or part of the decision5 … appealed from”6 the notice of appeal states that the appeal is from the order made on 29 March 2019. In that part of the document there is no reference to the costs order that was subsequently made by the same judge on 5 April 2019. That appears to have been an oversight given that, conformably with the requirement that the notice of appeal state the decisions the appellant seeks,7 the notice of appeal seeks an order as to the costs of the application in the Trial Division. So much is consistent with the fact that a copy of the sealed orders and reasons for judgment of Bond J for each of 29 March and 5 April 2019 are included in volume 1 of the record book. [8] An appeal against an order for costs upon the basis of success in a related appeal against the substantive order to which the costs order relates is not an appeal only in relation to costs. Such an appeal therefore may be brought without applying for leave to appeal under s 64 of the Supreme Court of Queensland Act 1991 (Qld). Subject to considering the parties’ arguments, the appropriate orders relating to the costs in the Trial Division would appear to be: (a) Grant the appellant leave to amend the notice of appeal by adding to paragraph 1, after the reference to “29 March 2019”, the words “and order 1 made on 5 April 2019”. (b) Vary order number 1 made in the Trial Division on 5 April 2019 by omitting the text after the words “subject to order 2,” and substituting the following text: (i) The applicants pay the respondent’s costs of the issue in the proceeding about the delivery of a report or an itemised bill of costs. (ii) The respondent pay the applicants’ costs of the issue in the proceeding about the validity of the costs agreements. [9] With some reluctance I would accede to the respondents’ request for a further opportunity to make submissions about costs, confined to submissions relating to costs in the Trial Division (including as to the appropriateness of an amendment to the notice of appeal upon that topic). The appellant should have the opportunity of 4 See [2020] QCA 125 at [61]. 5 The word “decision” means the “order, judgment, verdict or … assessment of damages”: Uniform Civil Procedure Rules 1999 (Qld), r 744. 6 UCPR, r 747(1)(a). 7 UCPR, r 747(1)(c). -- 4 of 5 -- 5 making further submissions upon the same topic. It is obviously far preferable that the parties reach agreement upon the orders about costs in the Trial Division instead of incurring further costs debating the costs orders. [10] I would order as follows: (a) The respondents pay the appellant’s costs of the issue in the appeal about the delivery of a report or an itemised bill of costs, including the appellant’s costs of its application to adduce evidence in the appeal. (b) The appellant pay the respondents’ costs of the issue in the appeal about the validity of the costs agreements. (c) If the parties are unable to agree about the appropriate orders relating to costs in the Trial Division (including as to the appropriateness of an amendment to the notice of appeal upon that topic), the parties have leave to lodge with the registry and serve within fourteen days of publication of these reasons written submissions upon that topic, such submissions not to exceed two A4 pages unless otherwise ordered by the Court, a judge of appeal or registrar. [11] PHILIPPIDES JA: I agree with the reasons of Fraser JA and the orders proposed by his Honour. [12] CROW J: I agree with the orders proposed by Fraser JA for the reasons given by his Honour. -- 5 of 5 --