Kiernan v Bunnings Building Supplies Pty Ltd
[2004] QDC 522
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- Kiernan v Bunnings Building Supplies Pty Ltd[2004] QDC 522
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Kiernan v Bunnings Building Supplies Pty Ltd[2004] QDC 522
Kiernan v Bunnings Building Supplies Pty Ltd[2004] QDC 522
[2004] QDC 522
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No D1119 of 2001
BRONWYN LUCY KIERNAN | Respondent/Plaintiff |
and |
|
BUNNINGS BUILDING SUPPLIES PTY LTD | Applicant/Defendant |
BRISBANE
DATE 26/11/2004
ORDER
CATCHWORDS: | Uniform Civil Procedure Rules r 710, 711, 719, 720, 819 - setting aside default costs assessment - service copy of costs statement did not contain the registrar's endorsement of time, date and place of the directions hearing although party liable to pay was independently informed of (but forgot about) that information, and failed to prepare and file any notice of objection default assessment set aside and costs statement - enforcement warrant set aside. |
HIS HONOUR: Before the Court is the application of a defendant in Southport proceedings D119 of 2001 which were settled on the eve of a trial listed to commence before Judge Rackemann on the 3rd of June 2004. The plaintiff was to be paid $45,000 which was subject to reduction by the meeting of statutory refunds. The Judge's order required the defendant to pay the plaintiff her costs to be assessed on the standard basis.
Those costs have been assessed by a Registrar at Southport but in the absence of any representative of the defendant to look out for its interests. Accordingly, the present application which, to all appearances, comes under rule 720, is made to set aside the default assessment of costs which was made under rule 719 in the absence of any objection.
The Registrar on the assessment on the 7th of October 2004 allowed the bill in full. There was some discussion of particular items in it as established by the affidavit of Mr Kozera. He is a New South Wales legal practitioner based in Armidale who was the plaintiff's solicitor. He is not a solicitor in Queensland and town agents based in Southport were used for purposes requiring a Queensland solicitor.
Although there was some discussion between Mr Kozera and the Registrar regarding some items, it is clear to me that the assessment was a default one. The Registrar gave some, but I would think minimal, critical attention to the bill, more correctly, costs statement. It would seem to be inevitable that had there been objections to be considered and, more so, had there been a representative of the defendant there to support them, the costs claimed would not have been allowed in full.
The final bill of $61,535.65 includes usual additions to the total amount claimed of $60,410.70 referrable to the assessment exercise. The amount allowed looms large in relation to the sum for which the claim was settled. Also, it gives rise to important questions. One concerns the basis on which the largest single item, namely, Mr Kozera's charge, ought to be approached.
Annexed to the assessment is a document setting out disbursements and, more importantly, Mr Kozera's itemised charges for his work which are time based and dealt with in five minute modules. The total comes to "186.33 hours at $200 per hour equals $37,266 plus GST to be added from the 1st July 2000".
The decision in Magberry Proprietary Limited v. Hafele Australia Pty Ltd (No 2) [2002] 1 Queensland Reports 183 includes an examination of the complications that can arise in respect of professional costs for services rendered by a non-Queensland practitioner. Issues may arise, even if there is an approach of accepting going rates in other jurisdictions, about whether the claim should be accepted in full.
Another significant issue which may be more significant from the point of view of reducing the costs ultimately recoverable by the plaintiff if the defendant's application is successful concerns the application of the District Court of Queensland scale of costs which applies given that the scale contemplated in Judge Rackemann's order was that applicable to a judgment sum of less than $50,000.
If the charging is governed by the scale, then, in the absence of any special order made by the Court, item 27 in particular imposes a cap which may have a dramatic effect.
The failure of the defendant's solicitor to attend on the assessment was attributable to the overlooking of a letter which had been received from the plaintiff's solicitors on the 8th of September 2004 advising that the plaintiff's application for costs assessment and costs statement had been listed for directions hearing at the District Court at Southport on 7th October 2004 at 9.30 a.m. That communication came about following contacts over the preceding three weeks or so, which relevantly began with provision by the plaintiff's solicitors of a copy of the costs statement no later than the 19th of August 2004.
For one reason or another, the solicitors involved found it difficult to get in direct communication with each other. In a telephone conversation on the 6th of September, Miss Miller on the defendant's side advised Ms Hunt on the plaintiff's side that she could not recommend accepting an amount anything like the total of the costs statement as delivered.
Unfortunately, the letter advising the fixture on the 7th of October 2004 was forgotten; given the failure to note the information it contained in the firm's bring-up system, it was not until the next day that Miss Miller realised that the notice of objections had not been prepared. Ms Hunt advised her on that day that costs had been assessed in the full amount claimed. There was little option but for Miss Miller to plead for indulgence in the form of consent to an order that the direction of the Registrar be vacated and the matter be listed for further directions. She indicated agreement to pay costs thrown away in relation to what happened on the 7th of October and in relation to having the Registrar's order set aside.
Miss Miller may not have been in quite as desperate a situation as she thought. Her letter of the 8th of October, in addition to reminding Ms Hunt that she knew that there was a dispute about the proper level of costs and that:
"no effort was made by you to contact the writer or this office on the morning of 7 October 2004 to query our intentions in relation to this matter. We note that if the situation had been reversed, we would have given you the courtesy of a phone call"
also noted that a filed and sealed copy of the application for costs assessment and costs statement had never been served or provided to the defendant's solicitors. That was a reference to rule 710, in particular subrule (2), which in terms imposes an obligation on the Registrar:
"When filing the costs statement the Registrar must write on the service copy of the costs statement the time and date set for directions herein before the Registrar in relation to costs."
Events did not happen as the rules required. Document 64 on the Court file shows the completion by the Registrar of details of time, date and place for a directions hearing in relation to the costs statement above the Registrar's seal and signature and the date the 6th September 2004. The application for costs assessment and costs statement supplied to Ms Miller lacked those details, no doubt because it went too early. However, the obvious intention of the rules be that the party required to pay costs be served with what the Registrar is required to write.
Rule 711 provides that the Registrar must not assess a costs statement unless the party entitled to costs has served a copy of the costs statement on the party liable for the costs.
...
HIS HONOUR: I take it Mr Matthews' submission was that the requirement or the precondition of the Registrar's proceeding is that rule 710 has been complied with. Though the rules do not expressly state that, it seems to be the right approach.
Mr Wilson for the plaintiff contended that the alternative basis for the application suggested to inhere in rule 667 was not available as the division of the UCPR referable to procedure to assess costs is a code. Whether or not that is right, it seems to me the present matter comes fair and square under rule 720. Mr Wilson submitted that a case has not been shown to satisfy the requirements of subrule (2) which requires the defendant's present application to be "supported by an affidavit explaining the default, any delay, and the grounds for the application".
There has been an attempt to cover all of those matters and I think an effective one. Mr Wilson objected to the use by the applicant defendant of an affidavit by an experienced expert in costs matters, Mr Garrett, who does not positively suggest what the costs ought to have been, but deposes to a proposition (of which I am inclined to think the Court would take judicial notice) that assessments of costs by Registrars in Queensland Courts are notoriously parsimonious.
I sympathise with the defendant's fear that the costs statement considered may have been prepared on a solicitor-client basis, something close to the indemnity basis referred to in rule 704 and not the standard basis in rule 703, which is the relevant one, assuming that the matter gets beyond the confines of the District Court Scale of costs.
The Court is reluctant to proceed on the basis that the professional courtesies Miss Miller said her firm would have respected had the tables been turned govern the matter, and justify allowing the application. I doubt that these courtesies still have any life in them, speaking generally.
Assuming that nothing turns on such old fashion niceties, there is still a basic principle in our practice that a person in whose absence orders are made, and who is affected by them, ought to have the right to approach the Court to seek to have those orders changed. I think the circumstances are ones in which everybody would expect that the defendant would have an opportunity of a hearing on costs and I am not prepared - especially in face of the material relied on by the defendant - to say that it should have been deprived of that right.
I accept that the argument based on rules 710 and 711 is a rather technical one, and Miss Miller did not really assert the contrary, facing up to the slip that had been made in her area. In my opinion the assessment made on the 7th of October 2004 by the Registrar at Southport should be set aside and the application for costs assessment and costs statement should be remitted to that Registrar for a directions hearing. The defendant should have until the 3rd of December 2004 to file and serve its notice of objections including - if applicable - any objection to the form of the costs statement.
...
HIS HONOUR: In that application filed the 23rd of November, order that the enforcement warrant of 25th October 2004 document 69 on the Court file be set aside under rule 819. The occasion for the seeking of that order was apparently the bailiff's attendance at the hardware store of the defendant at Burleigh Heads seeking to seize goods to satisfy the judgment which is probably not something that an insured judgment debtor anticipates these days. I will make no order to costs of that application.
That application is the defendant's application filed in Southport on 11th November 2004 and in Brisbane on the 23rd November 2004. The other orders are made in the defendant's application filed on 4th November 2004 in Southport and 23rd November 2004 in Brisbane. And those so far are: set aside the Registrar's assessment of costs of the 7th October 2004, remit the matter to the Registrar for a directions hearing and the defendant is allowed until the 3rd of December 2004 to file and serve its notice of objections including if applicable any objection to the form of the costs statement.
The defendant must pay the plaintiff's costs of 7 October 2004 to be assessed on the standard basis; no order as to costs otherwise.
...
HIS HONOUR: The Court notes that Mr Kozera became upset at the listing of these applications in Brisbane and apprehensive that something untoward might have happened regarding the removal of the matter from Southport. He expressed his concerns in language that might be thought slightly intemperate in a letter to the Chief Judge. Mr Kozera should feel assured that not only in relation to the Southport registry but other District Court registries where there are limited judicial resources available it is an almost every day occurrence for matters of interlocutory nature and like matters to be heard in Brisbane, where there is easier access to judges. There is nothing sinister about the transfer in the least I am certain; Mr Kozera cannot be expected to have known that.