Daly v D A Manufacturing Co P/L & Anor [2003] QCA 331

SUPREME COURT OF QUEENSLAND

CITATION: Daly v D A Manufacturing Co P/L & Anor [2003] QCA 331

PARTIES: STEPHEN DENNIS DALY (plaintiff/respondent) v D A MANUFACTURING CO PTY LTD ACN 010 219 717 (first defendant/appellant) LETZBUILD PTY LTD ACN 070 914 395 (second defendant)

FILE NO/S: Appeal No 10104 of 2002 SC No 7502 of 1999

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal – Further Order

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: Judgment delivered 4 July 2003 Further Order delivered 1 August 2003

DELIVERED AT: Brisbane

HEARING DATE: 11 April 2003

JUDGES: Williams and Jerrard JJA and Fryberg J Judgment of the Court

FURTHER ORDER: Order that the respondent pay the appellant’s costs of the appeal to be assessed, but limited to the appellant’s costs of and incidental to the appeal on quantum

CATCHWORDS: PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – OTHER CASES – FAILURE IN A PORTION OF A CASE – where appeal as to liability and quantum – where learned trial judge’s conclusion on liability upheld on appeal – where appeal as to quantum allowed – whether court should exercise its discretion to order the respondent to pay all of the appellant’s costs of the appeal / Deepcliffe P/L & Anor v The Council of the City of Gold Coast & Anor [2001] QCA 396; Appeal No 10673 of 2000, 25 September 2001, cited / Tamwoy v Solomon [1996] 2 Qd R 93; [1995] QCA 447; Appeal No 76 of 1995, 10 October 1995, cited / Tector v FAI General Insurance Co Ltd [2001] 2 Qd R 463; [2000] QCA 426; Appeal No 7391 of 1999, 8 December 2000, cited

COUNSEL: G W Diehm for the appellant / S C Williams QC, with P A Howard, for the respondent

SOLICITORS: Michael Stewart for the appellant / Primrose Couper Cronin Rudkin for the respondent

1. THE COURT: On 4 July 2003 the court allowed an appeal by the defendant and substituted an award of damages to the plaintiff in the sum of $240,957.00 for the sum of $370,392.84 originally assessed by the trial judge on the basis of his finding that the defendant was wholly liable. The court then gave the parties leave to make written submissions as to costs; those submissions have now been received.

2. Prior to trial the plaintiff, the present respondent, made a formal offer to settle complying with the UCPR for the sum of $170,000.00 plus costs; that was not accepted by the defendant. Because the assessment by the trial judge exceeded that offer the plaintiff obtained an order for costs of the trial on an indemnity basis. That costs order is not affected by the order made in this court.

3. Prior to the hearing of the appeal the defendant (present appellant) made an offer to settle in the sum of $190,000.00. That offer was not accepted.

4. On the hearing of the appeal the respondent-plaintiff sought to uphold the judgment in full. The appellant, in addition to challenging the assessment of quantum, contended that the learned trial judge should have concluded that no duty of care was owed by the appellant to the respondent. In the alternative the submission was made that there should have been a finding of contributory negligence. This court upheld the trial judge’s conclusion on liability.

5. In all of those circumstances the appellant seeks an order that the respondent pay its costs of and incidental to the appeal to be assessed on the standard basis, and the respondent seeks an order that the appellant pay his costs of the appeal either on an indemnity or standard basis.

6. The court is mindful of what has been said on this topic in Tamwoy v Solomon [1996] 2 Qd R 93, Tector v FAI General Insurance Co Ltd [2001] 2 Qd R 463, and Deepcliffe P/L & Anor v The Council of the City of Gold Coast & Anor [2001] QCA 396. In the circumstances the court is not satisfied that proper grounds exist for exercising the relevant discretion by ordering the successful appellant to pay the respondent’s costs.

7. A substantial portion of the hearing of the appeal, which lasted less than one day, was taken up with submissions on the issue of liability on which the appellant failed.

8. Against the background of all that is said herein the appropriate order is one which would oblige the respondent to pay the appellant’s costs of the appeal limited to the costs of and incidental to the appeal on the issue of quantum.

9. The court therefore orders as follows:

10. Order that the respondent pay the appellant’s costs of the appeal to be assessed, but limited to the appellant’s costs of and incidental to the appeal on quantum.