Callide Power Management Pty Ltd v Callide Coalfields (Sales) Pty Ltd [2008] QCA 216

SUPREME COURT OF QUEENSLAND CITATION: Callide Power Management P/L v Callide Coalfields (Sales) P/L [2008] QCA 216 PARTIES: CALLIDE POWER MANAGEMENT PTY. LIMITED ACN 082 468 700 (applicant/respondent) v CALLIDE COALFIELDS (SALES) PTY LTD ACN 082 543 986 (respondent/appellant) FILE NO/S: Appeal No 500 of 2008 SC No 8437 of 2007 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal – Further Order ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: Judgment delivered 11 July 2008 Further Order delivered 1 August 2008 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers JUDGES: Keane and Muir JJA and Mackenzie AJA Judgment of the Court FURTHER ORDER: 1. Respondent's application for indemnity costs dismissed 2. Appellant to pay the respondent's costs of and incidental to the appeal to be assessed on the standard basis CATCHWORDS: PROCEDURE – COSTS – RECOVERY OF COSTS – where the appellant rejected an earlier offer by the respondent to withdraw its appeal on the ground that each party bear its own costs as so far incurred – where the appellant was ultimately unsuccessful on appeal – whether the appellant acted unreasonably in pursuing the appeal – whether an order for indemnity costs in favour of the respondent ought to be made Greenhalgh v Bacas Training Limited & Ors [2007] QCA 365, distinguished COUNSEL: R W Gotterson QC for the appellant D B Fraser QC, with P W Telford, for the respondent SOLICITORS: Minter Ellison for the appellant BCI Duells Lawyers for the respondent -- 1 of 2 -- 2 [1] THE COURT: On 11 July 2008 the substantive appeal in this matter was dismissed. On that date the respondent was given leave, pursuant to Practice Direction 1 of 2005, to make submissions in relation to the orders for costs which should be made. [2] The respondent submits that it should recover its costs of the appeal on the indemnity basis having regard to its written offer to the appellant dated 20 March 2008 whereby it invited the appellant to withdraw its appeal on the footing that the respondent would bear its own costs of the appeal so far incurred. In this regard, the respondent relies upon the decision of this Court in Greenhalgh v Bacas Training Limited & Ors.1 [3] The appellant resists the respondent's application contending that the appellant did not act so unreasonably or imprudently in declining the respondent's offer as to warrant an order for costs on the indemnity basis. The appellant argues that Greenhalgh v Bacas Training Limited & Ors is distinguishable in that the unsuccessful party in that case was an applicant for leave to appeal and its refusal of an offer to withdraw its application free of any liability for costs was plainly unreasonable in the light of its relatively precarious position as a mere applicant for leave to appeal. [4] We consider that the appellant's submission should be accepted. In this case the appeal concerned the proper interpretation of a lengthy and complex commercial document. The position advanced by the appellant on the appeal was not so bereft of prospects of success that it can be said that the appellant acted unreasonably in pursuing the appeal which was available to it as of right. [5] Accordingly, we would reject the respondent's application. [6] We order that the appellant pay the respondent's costs of and incidental to the appeal to be assessed on the standard basis. 1 [2007] QCA 365. -- 2 of 2 --