Johnston & Anor v Herrod & Ors

[2012] QCA 361

Queensland Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Circumstances warranting departure from standard basis
5. › Whether findings of fraud and unconscionability necessarily warrant indemnity costs order
6. › Whether conduct in litigation was unreasonable
1. Appeal
2. › Appeal from discretionary order
3. › Costs order
4. › Heavy onus on appellant to establish error
5. › Whether primary judge failed to take into account relevant considerations

Quick Take

Findings of fraudulent misrepresentation or unconscionable conduct against a party in the underlying proceeding do not necessarily warrant an order for indemnity costs. The focus for indemnity costs remains on the conduct of the litigation itself, not the substantive findings. A party whose arguments were not obviously unsustainable may be ordered to pay costs on the standard basis only, even where fraud was found.