BM Culley & Associates Pty Ltd v Email Metals Pty Ltd [1997] QCA 64

IN THE COURT OF APPEAL [1997] QCA 064 SUPREME COURT OF QUEENSLAND Appeal No. 277 of 1995 Plaint No. 2458 of 1994 Brisbane Before Macrossan CJ de Jersey J Dowsett J [B.M. Culley & Assoc P/L v. Email Metals Pty Ltd] BETWEEN: B.M. CULLEY & ASSOCIATES PTY LTD ACN 005 250 555 (Defendant) Appellant AND: EMAIL METALS PTY LTD ACN 004 574 681 (trading as Union Steel) (Plaintiff) Respondent FURTHER ORDERS OF THE COURT Judgment delivered 4 April 1997 Further Orders delivered 9 May 1997 When judgment was delivered in this matter the successful respondent sought and was granted an opportunity to make further submissions on costs. The respondent now submits that it should have the costs of the appeal not just on a party and party basis but on a solicitor and client basis. This claim is contested by the unsuccessful appellant. No persuasive reason has been put forward by the respondent to justify a costs order in the unusual form sought. The fact that it made an offer to settle the appeal on the basis that it should be discontinued in its entirety with a contribution by the respondent of two dollars towards the appellant's costs and for interest does not justify departing from the usual form of a costs order. No practice rule equivalent to Order 26 provides for costs incentives to settle pending appeals by the -- 1 of 3 -- 2 making of offers to settle. In the absence of some special feature, a party and party order should apply for the benefit of a wholly successful respondent, cf. Rosenberger v. Meanderham Pty Ltd Apl No. 244 of 1995, unreported, 20 September 1996. It is ordered that the respondent have the costs of the appeal on a party and party basis except that the appellant is to have on a party and party basis an order for its costs of the subsequent proceedings concerned with costs following the handing down of the judgment in the appeal. -- 2 of 3 -- 3 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 277 of 1995 Plaint No. 2458 of 1994 Brisbane [B.M. Culley & Assoc P/L v. Email Metals Pty Ltd] BETWEEN: B.M. CULLEY & ASSOCIATES PTY LTD ACN 005 250 555 (Defendant) Appellant AND: EMAIL METALS PTY LTD ACN 004 574 681 (trading as Union Steel) (Plaintiff) Respondent Macrossan CJ de Jersey J Dowsett J Judgment delivered 4 April 1997 Further Orders delivered 9 May 1997 Judgment of the Court THE RESPONDENT IS TO HAVE THE COSTS OF THE APPEAL ON A PARTY AND PARTY BASIS EXCEPT THAT THE APPELLANT IS TO HAVE ON A PARTY AND PARTY BASIS AN ORDER FOR ITS COSTS OF THE SUBSEQUENT PROCEEDINGS CONCERNED WITH COSTS FOLLOWING THE HANDING DOWN OF JUDGMENT IN THE APPEAL. Counsel: Mr D R Gore QC with him Mr P W Hackett for the appellant. Mr P A Keane QC with him Mr P E Hack for the respondent Solicitors: Halletts for the appellant. Clayton Utz for the respondent. Hearing Date: 3 September 1996. -- 3 of 3 --