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[2006] QSC 263
mixed. Costs reserved pending outcome of appeal
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After dismissing the defendants' application, the judge had reserved the costs question for written submissions. However, before deciding costs, the defendants filed an appeal seeking orders including that the plaintiff pay their costs of the original proceeding. The judge decided to reserve costs until the appeal was decided, because the appeal outcome would likely determine who should pay costs, and any remaining costs issues could be sent back by the Court of Appeal if needed.
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[1] When handing down my decision on 9 June 2006 dismissing the application for judgment by the first, second and third defendants ("the defendants"), I reserved the question of costs to allow the parties to make written submissions. Submissions were received on or about 23 June 2006.
[2] However, before I could make a decision on the issue of costs a Notice of Appeal was filed on behalf of the defendants. The orders sought on appeal included:-
(b) that the respondent's amended Statement of Claim against the first appellant, second appellant and third appellant be struck out;
(c) that the appellants have judgment against the respondent in the action;
(d) that the respondent pay the appellants' costs of and incidental to this appeal, and to the proceeding below.
[3] The question arises whether I should continue to decide the issue of costs in the knowledge that the substantive point in dispute is under review. The possible outcomes of the appeal will, in all likelihood, determine which of the parties should pay the costs, not only of the appeal, but also of this application. If, for any reason, the issue of costs remains for my determination there is no difficulty in its being remitted by the Court of Appeal to be determined in accordance with its ruling.
[4] This being the case, I propose to simply reserve the question of costs until the outcome of the appeal is known.
Smith
Williams & Ors
Costs reserved pending outcome of appeal