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[2025] QCA 49
General information, not legal advice.
Court of Appeal (Qld)
2025-04-11
Flanagan and Brown JJA and Freeburn J
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Paetzold v At Beach Court Holiday Villas Pty Ltd [No 2] [2025] QCA 49
PARTIES: HERMAN HERBERT PAETZOLD / (applicant) / v / AT BEACH COURT HOLIDAY VILLAS PTY LTD / ABN 43 609 327 335 / (respondent)
FILE NO/S: Appeal No 5799 of 2024 DC No 207 of 2021
DIVISION: Court of Appeal
PROCEEDING: Application for Leave s 118 DCA (Civil) – Further Order
ORIGINATING COURT: District Court at Brisbane – [2024] QDC 35 (Sheridan DCJ)
DELIVERED ON: 11 April 2025
DELIVERED AT: Brisbane
HEARING DATE: Heard on the papers
JUDGES: Flanagan and Brown JJA and Freeburn J
ORDER: Applicant to pay respondent’s costs of: the application for leave; the cross-application for leave to cross-appeal; andthe notice of contention.
CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – GENERALLY – where the applicant applied for leave to appeal – where the respondent sought leave to cross-appeal if leave for appeal was granted – where the application for leave to appeal, and the appeal and the cross-appeal were heard together – where the respondent did not proceed with its cross-appeal if the application for leave was dismissed – where the application for leave was dismissed – whether costs should follow the event / PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – POWER TO ORDER – where the applicant’s leave to appeal was dismissed – where the applicant’s conduct was reasonable – whether the respondent should have been awarded costs on the indemnity basis / Uniform Civil Procedure Rules 1999 (Qld), r 388 / Paetzold v At Beach Holiday Villas Pty Ltd [2024] QCA 227, cited Rosniak v Government Insurance Office (1997) 41 NSWLR 608, followed Schache v GP No 1 Pty Ltd [2012] QCA 233, followed
COUNSEL: No appearance for the applicant, the applicant’s submissions were heard on the papers / No appearance for the respondent, the respondent’s submissions were heard on the papers
SOLICITORS: Macrossan & Amiet Solicitors for the applicant / Cooper Grace Ward Lawyers for the respondent
FLANAGAN JA: I agree with Freeburn J.
BROWN JA: I agree with Freeburn J.
FREEBURN J: On 15 November 2024, this court made orders refusing leave to appeal and dismissing the cross-appeal.1
The outstanding issue is costs.
The parties have filed written submissions on costs and are content for the issue of costs to be determined “on the papers”.
The primary judge gave judgment for the plaintiff, Mr Paetzold, in April 2024 for $41,077.2 In May 2024, Mr Paetzold applied for leave to appeal. Leave was required because the amount of the judgment was less than the Magistrates Court’s jurisdictional limit. If he was granted leave Mr Paetzold sought to set aside the existing judgment and to substitute a judgment for $252,627.3
Leave to appeal will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant (here Mr Paetzold) and there is a reasonable argument that there is an error to be corrected.
In May 2024, the respondent (At Beach) filed a Notice of Cross Appeal and Notice of Contention. At Beach submitted that Mr Paetzold should not be granted leave to appeal. That might be described as At Beach’s primary position. At Beach’s secondary position was that, if the court granted Mr Paetzold’s application for leave to appeal, then it would be just for that leave to extend to At Beach’s proposed cross-appeal.
Mr Paetzold’s application for leave was heard on 11 October 2024. As counsel for At Beach submits, the hearing was conducted on the basis that the application for leave to appeal, and the appeal and the cross-appeal were all heard simultaneously.
At Beach’s primary position was that the application for leave should be dismissed. Consistent with its written submissions, counsel for At Beach confirmed that if it succeeded on its primary position (that is that leave should be refused) then there was no need for the court to consider its secondary position that it have leave to pursue and prosecute its cross-appeal.
As explained, on 15 November 2024 the court refused Mr Paetzold’s application for leave to appeal. That meant it was unnecessary to consider At Beach’s application for leave to cross-appeal, or its notice of contention.
The final order of the court omitted to deal with costs. It is clear by its material that At Beach did seek costs orders. However, that is an omission that the court can and should correct pursuant to rule 388 of the (Qld).
Paetzold
At Beach Court Holiday Villas Pty Ltd [No 2] [2025] QCA 49
(1997) 41 NSWLR 608
As At Beach has been successful in resisting the grant of leave, Mr Paetzold should pay At Beach’s cost of the application. Those costs should include the costs of the application for leave to cross-appeal and the notice of contention.
The stance adopted by At Beach was a reasonable one. It was correct not to proceed with its application to cross-appeal and its notice of contention if it succeeded on its primary argument.
If At Beach failed on its primary argument, and Mr Paetzold was granted leave to appeal, then it was a rational approach for the court’s reconsideration of the issues to extend to the issues raised by At Beach’s proposed cross-appeal and notice of contention.
It is true that the cross-appeal and notice of contention raised further issues. But those further issues were sought to be litigated because Mr Paetzold brought his application for leave to appeal.
In essence, the principal approach of At Beach sought to sustain the primary judge’s decision. That result, that is the maintenance of the primary judge’s decision, was the result of the hearing in this court.
At Beach also seeks costs of preparing its argument for costs on the basis that At Beach had sought Mr Paetzold’s agreement to an order for costs in At Beach’s favour.
The circumstances in which the court might order costs on an indemnity basis are not closed. Certainly, there needs to be some special or unusual feature to justify the court departing from the usual practice.4 That feature may be present where there is some evidence of unreasonable conduct.5
This case does not fall into that special or unusual category. The court and the parties omitted to ensure that costs were dealt with. The conduct of Mr Paetzold in relation to costs is not shown to be unreasonable.
In the circumstances, the order will be that Mr Paetzold pay At Beach’s costs of the application for leave; the cross-application for leave to cross-appeal; and the notice of contention.