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[2009] ACTCA 14
Court of Appeal (ACT)
2009-10-08
Besanko JJ, Higgins CJ
Original judgment source is linked above.
7. This Court has already dealt with orders 1, 2 and 3. The Supreme Court has not made an order for costs in relation to the appeal it heard. However, neither party suggested that this Court is not able to make an order as to the costs of the appeal to the Supreme Court, and both parties made submissions as to the appropriate order. We propose to set aside order 4, and to make an order for the costs of the appeal to the Supreme Court.
8. Before the Supreme Court, the lessor should have succeeded on that aspect of the tenant's appeal which related to the valuation proceedings and it did succeed on that aspect of the tenant's appeal which related to the tenant's claim in the unconscionable conduct proceedings. The lessor was unsuccessful on that aspect of the tenant's appeal relating to its counterclaim in the unconscionable conduct proceedings. The tenant should have failed on that aspect of its appeal relating to the valuation proceedings and did fail on that aspect of its appeal which related to its claim in the unconscionable conduct proceedings. The tenant succeeded in relation to that aspect of its appeal which related to the lessor's counterclaim in the unconscionable conduct proceedings.
9. The lessor submits that it should receive its costs of the appeal to the Supreme Court. The tenant submits that there should be no order as to the costs of the appeal to the Supreme Court. We do not accept the contention of either party. The lessor's contention must be rejected because it fails to recognise that the lessor was unsuccessful in relation to its counterclaim in the unconscionable conduct proceedings. The tenant's contention must be rejected because it fails to recognise that the lessor should have been substantially successful in the appeal to the Supreme Court.
10. In its written submissions, the tenant identified a number of issues within the valuation proceedings upon which it submits it was successful. No doubt there are circumstances in which a court will reflect success or failure on particular issues in its order for costs. Indeed, we propose to do that in relation to the lessor's failure on its counterclaim in the unconscionable conduct proceedings. However, we do not think that it is appropriate to descend to the level of detail in terms of issues which is implicit in the submissions made by the tenant (see Dal Pont G E, Law of Costs (2nd ed, LexisNexis Butterworths, 2009) (pages 212-213, [8.7]-[8.8])).
11. We recognise that there are elements of impression and broad discretion in our approach to the question of the costs of the appeal to the Supreme Court in SCA 12 of 2007. However, we think that the appropriate order is that the tenant pay the lessor 70 per cent of its costs of the appeal to the Supreme Court.
12. In relation to the costs of the two appeals before this Court, we think that it is appropriate to take the same approach. In essence, the lessor has succeeded in the valuation proceedings and in relation to the tenant's claim in the unconscionable conduct proceedings. The lessor has failed in relation to its own counterclaim in the unconscionable conduct proceedings. The lessor's approach before this Court to that aspect of its appeal relating to its counterclaim in the unconscionable conduct proceedings was dealt with by Besanko J in this Court's earlier reasons in the appeals (Kingsley's Chicken Pty Limited v Queensland Investment Corporation and Canberra Centre Investments Pty Limited; Queensland Investment Corporation and Canberra Centre Investments Pty Limited v Kingsley's Chicken Pty Limited [2009] ACTCA 9) (at [142]).
13. The appeals were heard together and we think that the most convenient course is that there be one costs order in relation to the total costs of the two appeals. The lessor has been substantially successful. Again, we recognise that there are elements of impression and broad discretion in our approach to the question of costs. However, we think the appropriate order is that the tenant pay 80 per cent of the lessor's total costs of the two appeals.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
2007): Bradley Allen Lawyers (at Hearing) and Meyer Vandenberg (from 7 May 2009)
Appellants (in ACTCA 40 of 2007): Mr F J Purnell SC
Appellants (in ACTCA 40 of 2007): Mallesons Stephen Jaques
39 of 2007; ACTCA 40 of 2007): 11 June and 13 August 2009
1. The Court made orders in these two appeals on 28 May 2009 (Kingsley's Chicken Pty Limited v Queensland Investment Corporation and Canberra Centre Investments Pty Limited; Queensland Investment Corporation and Canberra Centre Investments Pty Limited v Kingsley's Chicken Pty Limited [2009] ACTCA 9). The Court gave the parties leave to file written submissions on any other orders and on the question of costs. The tenant sought to have the question of costs deferred pending an application by it to the High Court of Australia for special leave to appeal from the orders already made. That application for deferment was refused (see Kingsley's Chicken Pty Limited v Queensland Investment Corporation and Canberra Centre Investments Pty Limited; Queensland Investment Corporation and Canberra Centre Investments Pty Limited v Kingsley's Chicken Pty Limited (No 2) [2009] ACTCA 11). Both parties have filed written submissions. Neither party has sought orders other than orders as to costs.
2. It is necessary for this Court to make the orders as to costs which should have been made in the Supreme Court appeal matter of SCA 12 of 2007 (Kingsley's Chicken Pty Limited v Queensland Investment Corporation and Canberra Centre Investments Pty Limited [2007] ACTSC 77; (2007) 214 FLR 253) (including any order as to the costs of the proceedings in the Magistrates Court) and orders as to the costs of the two appeals to this Court.
(2007) 214 FLR 253