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Pivovarova v Michelsen[2021] QCA 124

Pivovarova v Michelsen[2021] QCA 124

SUPREME COURT OF QUEENSLAND

CITATION:

Pivovarova v Michelsen [2021] QCA 124

PARTIES:

TATIANA PIVOVAROVA

(applicant)

v

PETER B. MICHELSEN t/as PETER MICHELSEN BUILDING SERVICE

ABN 84 003 506 297

(respondent)

FILE NO/S:

Appeal No 5730 of 2019

QCAT No 223 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act – Further Orders

ORIGINATING COURT:

Queensland Civil and Administrative Appeals Tribunal at Brisbane – [2019] QCATA 54 (Daubney J)

DELIVERED ON:

4 June 2021

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Fraser JA and Boddice and Crow JJ

ORDERS:

  1. If leave is necessary, the respondent has leave to make submissions about costs.
  2. The applicant is taken to have been served with the respondent’s application for costs and his supporting affidavit by 1 September 2020.
  3. The applicant pay the respondent’s costs of and incidental to the applicant’s application for leave to appeal, such costs being fixed in the amount of $15,596.00, inclusive of GST.
  4. The applicant pay the respondent’s costs of this application, including the costs of engaging a process server.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – where the applicant was denied leave to appeal a decision of the appeal tribunal of the Queensland Civil and Administrative Tribunal on 19 November 2019 – where the respondent filed an application for orders that costs of the application for leave to appeal be awarded to the respondent and be assessed on a fixed basis or as the court determines – where the respondent deposed that he recalled saying during the hearing of the application for leave on 25 September 2019 that he requested that the appeal be dismissed with costs – where no orders were made in relation to those costs as a results of that hearing – where – whether the respondent’s application for costs was served on the applicant – whether costs should be awarded to the respondent and if so, on what basis

Uniform Civil Procedure Rules 1999 (Qld), r 388

L Shaddock & Associates Pty Ltd v Paramatta City Council [No 2] (1983) 151 CLR 590; [1982] HCA 59, cited

Barrell Insurances Pty Ltd v Pennant Hills Restaurants Pty Ltd (1984) 58 ALJR 51; (1983) 49 ALR 384, cited

Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446, cited

COUNSEL:

The applicant appeared on her own behalf

The respondent appeared on his own behalf

SOLICITORS:

The applicant appeared on her own behalf

The respondent appeared on his own behalf

  1. [1]
    THE COURT:  In November 2019 the Court dismissed an application for leave to appeal from a decision of the Appeal Tribunal of QCAT made on 10 May 2019, which dismissed the applicant’s appeal to that Tribunal.  Neither party was legally represented at the hearing of the application for leave to appeal to this Court and the Court made no order as to the costs of that application.
  1. [2]
    On 6 January 2020 the respondent filed an application for orders that costs of the application for leave to appeal be awarded to the respondent and be assessed on a fixed basis or as the court determines.  The application was supported by an affidavit by the respondent, which includes statements to the following effect.  It had been correctly noted in the Court’s decision that both parties were self-represented, but the respondent had organised for a barrister to be instructed by the respondent’s solicitor to review the applicant’s submission and prepare a written outline of submissions and associated documents.  The respondent had incurred legal fees as outlined in his solicitor’s trust account statement exhibited to his affidavit.  The total of those legal fees is $15,596.00, inclusive of GST.  The respondent deposed that he recalled saying during the hearing of the appeal that he requested that the appeal be dismissed with costs; because of his age and his accent it was possible that this part of his submission might not have been clearly heard, but he thought that it would have been recorded in the transcript.
  2. [3]
    As the respondent anticipated, the transcript of the hearing, which the Court obtained for the purpose of considering the respondent’s application, records a submission by him for costs.  Either that submission was not heard for the reasons given by the respondent or it was overlooked.  In either case, there has been a slip of a kind which the court is empowered to correct, notwithstanding the finality of the order made by the Court: see UCPR rule 388(1)(b); L Shaddock & Associates Pty Ltd v Paramatta City Council [No 2] (1983) 151 CLR 590 at 593 – 597; Barrell Insurances Pty Ltd v Pennant Hills Restaurants Pty Ltd (1984) 58 ALJR 51 at 52; Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 452 F – G (McHugh JA).
  3. [4]
    The respondent was advised by the registrar that it was necessary for him to make a formal application to the Court for leave to make submissions because more than seven days had passed since the judgment had been delivered: see paragraph 52 of Practice Direction 3 of 2013.  The respondent filed such an application on 31 August 2020.  On 8 September 2020 the respondent was informed by the registrar that, in the absence of any current address for the applicant, the respondent should serve the filed documents upon the applicant and file an affidavit of service or an acknowledgement from the applicant that she had received the documents.
  4. [5]
    The respondent subsequently filed an affidavit on 28 April 2021, sworn on 25 February 2021 by a process server.  A land title search showed the applicant owned a unit at an address in Darwin.  The process server deposed that on six occasions between 12 and 31 October 2020 he attempted to serve the documents at that address. There was no public access to the unit.  On five occasions the process server attempted to speak to an occupant using an intercom but received no response.  On one of those occasions the process server left in the letterbox for the unit a calling card requesting urgent contact.  On another occasion the process server spoke via the intercom with a male who refused to identify himself, stated that the applicant did not reside at that address, and refused to provide any information about who managed the unit.
  5. [6]
    The respondent swore an affidavit on 19 April 2021. He deposed to having ascertained from the Court of Appeal registrar that a Mr Francis, who had represented the applicant during the Court of Appeal application, had since ceased to have any involvement on behalf of the applicant.  The respondent received an email from the applicant which included her email address.  The respondent sent the relevant documents to that email address on 7 January 2020 and requested a receipt, as had been customary between the parties in the proceedings in the Court of Appeal.  The respondent received an email dated 8 January 2020 from the applicant’s email address, in which “John” confirmed receipt.  The respondent sent an email dated 1 September 2020 to the same email address attaching the documents subsequently filed in the Court of Appeal registry and asking for a confirmation of receipt.  The respondent received no response or bounce back failure message.
  6. [7]
    The respondent deposed that on or about 22 January 2021 he received by email from a debt collection service a claim for payment arising from an order in QCAT in favour of the applicant.  The affidavit exhibits a letter dated 22 February 2021 from the applicant relating to that claimed payment.  The letter is addressed to the collection service and copied to the respondent.  In the letter the applicant confirmed that Mr John Francis “holds representation status in this matter”.  The letter records that the applicant would reject any direct mail from the respondent or on his behalf.  The letter concludes with the statement, “If you have any questions or require further information, please send all information to [the identified email address] (C/- John Francis).”  A letter bearing the same date and addressed to the respondent makes statements to similar effect and includes a note “that neither Court of Appeal, neth (sic) QCAT and yourself has a legal right to decide about my representative Mr Francis”.
  7. [8]
    The respondent’s affidavit exhibits many other documents which demonstrate, as the respondent deposes, that from 2011 to February 2021 the applicant has used the email address.  Other documents exhibited to the affidavit convey that the applicant and Mr Francis resided at the address in Darwin at which the process server engaged by the respondent unsuccessfully attempted to serve the applicant.
  8. [9]
    The affidavit evidence satisfactorily establishes that the applicant initially sought to evade service of the current application and that it has been brought to the applicant’s attention.
  9. [10]
    Having regard to the fact that that the transcript records that the respondent did apply at the hearing for costs, the respondent’s status as a self-represented litigant, and the difficulties he has encountered in serving the applicant, his delay in making a formal application for leave to apply for costs should not preclude him from now obtaining an appropriate costs order.
  10. [11]
    There being no reason why costs should not follow the event, it is appropriate to order the applicant to pay the respondent’s costs of the application for leave to appeal.  Having regard to the extent and complexity of the applicant’s arguments in support of her application in the Court of Appeal, the amount of legal costs incurred by the respondent should be regarded as a reasonable approximation of his costs assessed on the ordinary basis.
  11. [12]
    In these circumstances the following orders are appropriate:
  1. If leave is necessary, the respondent has leave to make submissions about costs.
  2. The applicant is taken to have been served with the respondent’s application for costs and his supporting affidavit by 1 September 2020.
  3. The applicant pay the respondent’s costs of and incidental to the applicant’s application for leave to appeal, such costs being fixed in the amount of $15,596.00, inclusive of GST.
  4. The applicant pay the respondent’s costs of this application, including the costs of engaging a process server.
Close

Editorial Notes

  • Published Case Name:

    Pivovarova v Michelsen

  • Shortened Case Name:

    Pivovarova v Michelsen

  • MNC:

    [2021] QCA 124

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Boddice, Crow JJ

  • Date:

    04 Jun 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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