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  • Unreported Judgment

Lake Morpeth Pty Ltd v Zervos Pty Ltd

 

[2013] QSC 102

 

 SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Trial

PROCEEDING:

Application

DELIVERED ON:

23 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Jackson J

ORDER:

It is ordered that the second respondent’s costs of the proceeding incurred after 11 April 2012, which on 12 February 2012 were ordered to be paid by the applicant, be assessed.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE - COSTS FOLLOW THE EVENT – CO-DEFENDANTS – where proceeding against the second defendant was dismissed – where parties were asked to provide further submissions on costs – where costs of co-defendants could not be separated or summarily determined from the documents provided – where a party opposed the summary determination of costs – whether costs should be determined summarily or ordered to be assessed

Uniform Civil Procedure Rules 1999 (Qld), r 687(2), r 693, r 698

Carrabubula Holdings Pty Ltd v State Bank of NSW [2000] NSWSC 232

COUNSEL:

On the papers

SOLICITORS:

Tucker Cowen for the applicant
The second respondent in person

[1] JACKSON J:  On 12 February 2013 I made an order dismissing the proceeding as against the second respondent, Mrs Fennell.  I also made an order that the applicant, Lake Morpeth, pay Mrs Fennell’s costs of the proceeding incurred after 11 April 2012. 

[2] In an attempt to summarily dispose of the question of the amount of the costs,[1] I made directions for Mrs Fennell to furnish to Lake Morpeth’s solicitors copies of any tax invoices in relation to legal costs incurred and for which she is liable or has paid on the basis she was liable for those costs and any retainer agreement relating to the costs which she seeks to have awarded under the order.  I made directions for Mrs Fennell and Lake Morpeth then to forward submissions to me by email of not more than three pages in length together with any copies of any relevant tax invoices. 

[3] Mrs Fennell delivered a document purportedly being submissions in relation to her costs and disbursements three pages in length but to which she attached a list of documents running to 68 pages not confined to tax invoices. 

[4] By her submission, Mrs Fennell does not seek an assessment limited to her own costs and disbursements of the proceeding.  Instead, she makes wide ranging claims so as to recover the costs of all respondents to the proceeding or one third of the costs of all the respondents to the proceeding, with no attempt to identify what were costs of the proceeding to the extent that it was brought against her.  The difficulty in that approach is that her involvement in the proceeding was comparatively minor. She was joined as a party because notification of an apparent transfer to her of shares was lodged in the office of the ASIC.  The applicant claimed an entitlement to those shares against the other respondents and therefore against her as well.  However, from an early point in the proceeding it was apparent that the notification was lodged in error and she made no claim to the shares.

[5] It appears that there were a number of interlocutory applications at which Mrs Fennell was represented.  From a relatively early time in the proceeding, no order has been made against her and the interlocutory applications were at least for the most part not made for orders against her.  However, there seem to be some reserved costs orders of interlocutory applications in the proceeding which may affect her.  My order of 12 February 2013 did not expressly deal with the costs of those applications but was an order for the costs of the proceeding, in general. Accordingly, the costs of the proceeding do not include the costs of those applications: UCPR 693.  However, those costs follow the event of dismissal of the proceeding against Mrs Fennell, as the court has not ordered otherwise: UCPR 698.

[6] Mrs Fennell has provided copies of a group of legal practitioners’ tax invoices in the documents attached to her submissions.  By looking through them it is impossible to identify the amount of the professional fees or the amount of any disbursements which may have been incurred by her as a respondent to the proceeding.  Her costs and disbursements, so far as they relate to the proceeding against her, would need to be separated out in terms of the work which was done for her from work which was only done for the other respondents.  Secondly, to the extent that there may be common costs or disbursements, the usual practice would be to apportion them according to the “rule of thumb” applying in the case of some successful and some unsuccessful defendants.[2]  It is not possible to accurately identify them from the tax invoices so as to apportion any relevant amounts which might be recoverable by Mrs Fennell, so as to “fix costs on a reliable basis”.[3]

[7] In other circumstances, I might have attempted to form a broad estimate of what should be recoverable among the items which have been claimed so as to spare the parties further proceeding on the question of the assessment of the amount, which is not likely to be large. 

[8] However, Lake Morpeth opposes that course and seeks instead an order for assessment. 

[9] Mrs Fennell, for her part, has not assisted the process by making claims for costs of other respondents that are plainly not recoverable.  As well, she seeks additional orders in relation to those costs, seeking to make Lake Morpeth’s director and solicitors personally liable.  She also makes an allegation that the proceeding was brought or maintained for an improper purpose.  None of these are matters which can be dealt with by a summary assessment of any relevant tax invoices.  Application for those orders would have to be made by an appropriate application on notice supported by relevant admissible affidavit material.  For present purposes, the relevance of Mrs Fennell’s submissions is that she too appears to wish to escalate the issue of costs and the assessment of the amount of costs.

[10] In these circumstances, it is not appropriate for me to attempt to deal with the matter on the basis of the written submissions and the tax invoices that were submitted in accordance with the directions that I made on 12 February 2013.  Instead, I propose to order that the second respondent’s costs of the proceeding incurred after 11 April 2012, which on 12 February 2012 were ordered to be paid by the applicant, be assessed.

Footnotes

[1] Under UCPR 687(2) and following the principles set out in Practice Direction 3 of 2007.

[2] As recently discussed in Carrabubula Holdings Pty Ltd v State Bank of NSW [2000] NSWSC 232 at [95].

[3] Paragraph 3(a) Practice Direction 3 of 2007.

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Editorial Notes

  • Published Case Name:

    Lake Morpeth P/L v Zervos P/L & Ors

  • Shortened Case Name:

    Lake Morpeth Pty Ltd v Zervos Pty Ltd

  • MNC:

    [2013] QSC 102

  • Court:

    QSC

  • Judge(s):

    Jackson J

  • Date:

    23 Apr 2013

Litigation History

No Litigation History

Appeal Status

No Status