Boylan v Gallagher

[2011] QCA 287

Queensland Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Costs following the event
4. › Departure from general rule
5. › Where successful appellant conceded point at trial
6. › Whether costs of trial should be excluded from costs order
1. Appeal
2. › Costs
3. › Appeal Costs Fund
4. › Indemnity certificate
5. › Whether discretion to grant certificate enlivened
6. › Question of law arising from uncontentious facts
7. › Point conceded at trial
8. › Appeal Costs Fund Act 1973 (Qld), s 15(1)

Quick Take

Where an appellant succeeds on appeal on a point conceded at trial, and the respondent succeeded on all issues actually litigated at trial, the appropriate costs order may exclude the costs of the trial from the appellant's recovery. The respondent's unjustified concession at trial, which created the need for the appeal, is a relevant factor in the exercise of the costs discretion. An indemnity certificate under s 15(1) of the Appeal Costs Fund Act 1973 (Qld) may be granted where the appeal turned on a question of law arising from uncontentious facts and the point was conceded at trial.