Willett & Anor v Futcher [2004] QCA 64

Court of Appeal (Qld)|2004-03-19|Before: Davies, JA, Jones and Holmes JJ, Separate reasons for judgment of each member of the, Court, each concurring as to the further order made

[1] DAVIES JA: I agree with the costs order proposed by Jones J for the reasons he gives.

[2] JONES J: The appellant unsuccessfully appealed against the quantum of the allowance for fund management which had been assessed as part of her damages. The appellant now submits that despite this outcome she should not pay the respondent's costs on appeal. The appellant does so on the grounds that the question arising on appeal was one of general importance, that the decision provided a clarification of the scope of the services to be considered when making such an assessment, such scope not having been authoritatively determined in earlier decisions.

[3] The appellant had sought a very substantial increase in the allowance which, had the argument succeeded, would have been well above the usual range of such assessment. Moreover, the appeal was determined largely on arguments which had been rehearsed of the court of first instance.

[4] I do not consider that the fact that the appeal involved a question of "general public importance" gives such support to the application. As was observed in Hollier v Australian Maritime Safety Authority[1] "much litigation has a public interest going beyond the interests of the parties. But this feature is inherent in common law litigation and provides no ground for departure from the usual rule as to costs".

[5] The circumstances in this case do not justify a departure from the normal rule that costs should follow the event.

[6] I would order that the appellant pay the respondent's costs of and incidental to the appeal to be assessed on the standard basis.

[7] HOLMES J: I agree with the reasoning of Jones J in respect to costs and with the order he proposes.

[1] (1998) Federal Court of Australia (Full Court) VG 116/1998

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