Marriner Views CTS 9252 v Jamieson (No 2)
[2003] QDC 423
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- Unreported Judgment
- Marriner Views CTS 9252 v Jamieson (No 2)[2003] QDC 423
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Marriner Views CTS 9252 v Jamieson (No 2)[2003] QDC 423
Marriner Views CTS 9252 v Jamieson (No 2)[2003] QDC 423
DISTRICT COURT OF QUEENSLAND
CITATION: | Marriner Views CTS 9252 v Jamieson & Ors (No 2)[2003] QDC 423 |
PARTIES: | MARRINER VIEWS CTS 9252 Appellant and june jamieson First Respondent and the commissioner for body corporate and community management Second Respondent and r a meek Third Respondent |
FILE NO: | D1048/02 |
DIVISION: | Civil Appeal |
PROCEEDING: | Application |
ORIGINATING COURT: | Southport |
DELIVERED ON: | 15 August 2003 |
DELIVERED AT: | Southport |
HEARING DATE: | 26 May 2003 |
JUDGE: | Alan Wilson SC DCJ |
ORDER: | The respondent/appellant pay the applicant’s/second and third respondent’s costs of and incidental to the application heard on 26 May 2003 assessed on the standard basis. |
CATCHWORDS: | COSTS – application by respondents in an appeal from decision of an Adjudicator appointed under the Body Corporate and Community Management Act 1997 for removal as parties to the appeal – application upheld – whether costs should follow the event Body Corporate and Community Management Act 1997 Uniform Civil Procedure Rules, r 689 Cases considered: Hollis Holdings Pty Ltd v P J Hanley & Commissioner for Body Corporate and Community Management (2002) QDC 87 Oceania on Broadbeach v Searle (2003) QDC 11 Westlake Villas Body Corporate v Meek & Ors, D 2138/98 |
COUNSEL: | Mr J Horton – for the applicants (second and third respondents to appeal) Mr C J Carrigan – for the respondent (appellant) |
SOLICITORS: | Ms M Vidhs (Department of Natural Resources and Mines) for applicants Short Punch & Greatorix for respondent |
- [1]The second and third respondents applied to be removed as parties to this appeal and, in a judgment given on 30 July 2003, the application was allowed. Subsequently, written submissions on costs were delivered. The question is whether costs should follow the event (UCPR, r 689), or whether some other order is more appropriate.
- [2]The Body Corporate and Community Management Act 1997 provides that decisions of an Adjudicator may be appealed to this Court but does not identify whether or not the Commissioner or the Adjudicator should be joined as respondents to the appeal. In the application before me the appellant contended they were properly joined as parties, and ought not be released. I was referred to several unreported decisions in this Court, and the Court of Appeal which, it was suggested, showed that a practice had developed of joining those parties to an appeal and, previously, they had not objected to that course but, rather, had simply signified they would not take any active role in the litigation. No application of this kind was brought in those cases, which are mentioned in my earlier judgment[1].
- [3]As correspondence placed before me by the parties shows, however, the solicitors for the Commissioner and the Adjudicator (Crown Law) signified from an early date in this appeal that it did not consider those parties should be respondents in the appeal, and would apply to have them removed. On 11 February 2003, less than two months after the Notice of Appeal was filed Crown Law advised the appellant’s solicitors that if the appellant did not agree to discontinue against them, it would apply to have the matter dealt with summarily. In a further letter 28 February 2003 it was made clear the respondents maintained their position that they were not proper parties. On 24 April Crown Law told the appellant’s solicitors that it had instructions to apply to have the second and third respondents removed, as parties. In a further letter 21 May 2003 Crown Law said:
Our client’s case is simply that they should not be respondents to the proceeding because they were neither “parties to the proceeding”; nor do they have an interest (in the relevant sense) in maintaining the decision under appeal. … In circumstances where these facts were drawn to your attention at an early stage and your client has not agreed to the orders sought on an unconditional basis, our clients intend to press the request that the Court order costs of the application in their favour, should the application be successful.
- [4]That letter was written in response to a letter the previous day from the appellant’s solicitors Short Punch & Greatorix offering to settle this application on terms that the second and third respondents be removed from the proceedings if they provided a written undertaking to the Court specifying their agreement to abide by its decision.
- [5]My Reasons of 30 July 2003 confirm the application was properly brought and, as the correspondence shows, the appellant had been clearly advised, and warned of the respondent’s position over the preceding three months. In those circumstances there is no good reason to depart from the ordinary rule and costs ought follow the event.
Footnotes
[1]Oceania On Broadbeach v Searle (2003) QDC 11; Hollis Holdings Pty Ltd v P J Hanley & Commissioner for Body Corporate and Community Management (2002) QDC 87, and Westlake Villas Body Corporate v Meek & Ors D2138/98