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Mantonella Pty Ltd v Thompson[2011] QCA 108

Mantonella Pty Ltd v Thompson[2011] QCA 108

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

DELIVERED ON:

31 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

23 May 2011

JUDGES:

Margaret McMurdo P, Cullinane and Jones JJ

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

  1. The security for costs held to the credit of this appeal, including any accretions thereon, be discharged by the payment to the respondent of such sum for counsel’s fees as the Deputy Registrar, (Appeals), considers reasonable in satisfaction of the costs of the proceeding (including the costs of this application).
  2. The balance of the fund (if any) is to be paid out to the appellant.

CATCHWORDS:

PROCEDURE – COSTS – SECURITY FOR COSTS – OTHER MATTERS – where appellant paid security for costs into Court for purposes of appeal – respondent applying for costs to be paid out – appellant applying for counsel fees of the respondent required to be paid out of the security to be assessed

Uniform Civil Procedure Rules 1999 (Qld), r 676(3)

COUNSEL:

A Jorgensen appeared in his capacity as manager of Mantonella Pty Ltd

M P Sumner-Potts for the respondent

SOLICITORS:

A Jorgensen appeared in his capacity as manager of Mantonella Pty Ltd

Myles Thompson Lawyers for the respondent

[1]  MARGARET McMURDO P:  I agree with the reasons and proposed orders of Jones J.

[2]  CULLINANE J:  I agree with the reasons of Jones J in this matter and the orders he proposes.

[3]  JONES J:   On 7 April 2009, the appeal in this proceeding was dismissed with an order that the appellant pay the respondent’s costs.  An application for leave to appeal to the High Court of Australia was refused on 9 December 2009.

[4] In the course of the appeal proceeding, the appellant, pursuant to a consent order, paid into court the sum of $5,000 as security for costs.  The respondent now applies for payment out of this security together with accretions thereon in part satisfaction of his costs.  The costs ordered to be paid are yet to be assessed and there may be no utility in the respondent incurring the expense in doing so.  Counsel who appeared for the respondent on the appeal has submitted a memorandum of fees in general terms for the sum of $16,500 (including GST).  That memorandum referred to fees earned prior to, and since, the order for security for costs was made.

[5] When this application came on for hearing Mr Jorgensen, a former director of the appellant company and now the manager of its business, was granted to leave to appear on behalf of the company.  He opposed the payment out of the full amount of the security on the grounds that he had not been provided with an itemised costs statement and contending that counsel’s fees should amount to no more than $3,000 having regard to the amount in dispute and the length of time involved.  The respondent is a solicitor acting on his own behalf and not therefore entitled to claim for his costs.

[6] Mr Sumner-Potts of Counsel, who appeared for the respondent, abandoned that part of the application to have the Court assess or fix the costs of appeal thus making unnecessary the provision of an itemised statement of costs.  But he argued that counsel’s fees inevitably would exceed $5,000 and sought payment out of the whole of the security and accretions. 

[7] The application is made pursuant to R 676 of the Uniform Civil Procedure Rules (UCPR) which relevantly provides:

“(1)

(2)If judgment is given requiring the party to pay all or part of the costs of the proceeding, the security may be applied in satisfaction of those costs.

(3)However, the security must be discharged –

(a) if a judgment is given which is not within subrule (2); or

(b) if the court orders the discharge of the security; or

(c) if the party entitled to the benefit of the security consents to its discharge; or

(d) in relation to the balance after costs have been satisfied under subrule (2).”

[8] The issue now raised relates to the requirement of subrule 3(d) namely, what amount is required to satisfy costs.  On this issue there is simply no evidence other than the presentation by counsel of the memorandum of fees, which is now challenged.  That challenge will no doubt continue unless an itemised costs statement is presented or, at least, until an independent costs assessor opines as to the level of counsel’s fees considered to be reasonable.  On the receipt of such material the Deputy Registrar, (Appeals), would be in a position to determine whether the amount of counsel’s fees reasonably incurred in responding to the appeal exceeds the sum presently held on account of this appeal. 

[9] Once the requirements of R 676(3) have been satisfied the security must be discharged.  In my view, that discharge can be achieved by an order directing the Registrar to apply from the funds held in Court in respect of this appeal, such sum for counsel’s fees as the Deputy Registrar, (Appeals), considers is reasonable to satisfy the costs of the appeal (including the costs of this application).  The balance of the fund (if any) should be paid out to the appellant.

[10] I would therefore order as follows:-

1. The security for costs held to the credit of this appeal, including any accretions thereon, be discharged by the payment to the respondent of such sum for counsel’s fees as the Deputy Registrar, (Appeals), considers reasonable in satisfaction of the costs of the proceeding (including the costs of this application).

2. The balance of the fund (if any) is to be paid out to the appellant.

Close

Editorial Notes

  • Published Case Name:

    Mantonella Pty Ltd v Thompson

  • Shortened Case Name:

    Mantonella Pty Ltd v Thompson

  • MNC:

    [2011] QCA 108

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Cullinane J, Jones J

  • Date:

    31 May 2011

Litigation History

EventCitation or FileDateNotes
Primary JudgmentMagistrates Court (no citation or file number)02 Jun 2005Plaintiff commenced proceedings in June 1997 seeking damages for negligence and breach of fiduciary duty against solicitor; plaintiff applied for leave to proceed, not having taken a step since mid-2001; defendant cross-applied for order dismissing proceeding for want of prosecution; proceeding dismissed
Primary Judgment[2005] QDC 44312 Dec 2005Plaintiff appealed against Magistrate's decision given on 2 June 2005 and sought an order that appeal judge recuse himself on the basis of apprehended bias; order that appeal be heard by another judge and costs reserved: White DCJ
Primary Judgment[2006] QDC 14817 May 2006Plaintiff appealed against Magistrate's decision given on 2 June 2005; appeal allowed, order dismissing proceeding set aside and leave to proceed granted: Bradley DCJ
Primary Judgment[2006] QDC 42522 Aug 2006White DCJ
Primary JudgmentMagistrates Court No 1207 of 199718 Sep 2007Trial of plaintiff's claim for damages for negligence and breach of fiduciary duty against solicitor; solicitor counterclaimed for money due and owing under cheques; dismissing plaintiff's claim and upholding defendant's counterclaim: Magistrate Brassington
Primary Judgment[2008] QDC 3503 Mar 2008Plaintiff appealed from decision of Magistrate Brassington; outline of argument not filed; ordered that appeal be struck out for want of prosecution unless outline of argument filed by 6 March 2008: Robin QC DCJ
Primary Judgment[2008] QDC 9202 May 2008Plaintiff appealed against decision of Magistrate Brassington delivered on 18 September 2007; appeal dismissed: Dodds DCJ
Appeal Determined (QCA)[2008] QCA 24119 Aug 2008Plaintiff applied for leave to appeal against [2008] QDC 92; leave to appeal granted: Holmes JA, Muir JA and Philippides J
Appeal Determined (QCA)[2009] QCA 80 [2009] 2 Qd R 52407 Apr 2009Plaintiff appealed against [2008] QDC 92; appeal dismissed with costs: M McMurdo P, Muir JA and Fryberg J
Appeal Determined (QCA)[2011] QCA 10831 May 2011Respondent applied for payment out of security held by court in part satisfaction of his costs; security be discharged by payment to respondent of such sum for counsel's fees as considered reasonable: M McMurdo P, Cullinane and Jones JJ
Special Leave Refused (HCA)[2009] HCASL 25809 Dec 2009Plaintiff applied for special leave to appeal against [2009] QCA 80; application dismissed: Heydon and Bell JJ

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

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