King v Fister (No. 2)
[2021] QDC 4
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- King v Fister (No. 2)[2021] QDC 4
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King v Fister (No. 2)[2021] QDC 4
King v Fister (No. 2)[2021] QDC 4
DISTRICT COURT OF QUEENSLAND
CITATION: | King & Anor v Fister & Anor (No. 2) [2021] QDC 4 |
PARTIES: | ANDREW KING AND JODI KING (Plaintiffs) v KAREN AMANDA FISTER (First Defendant) And CHRISTOPHER ROBERT HALL (Second Defendant) |
FILE NO/S: | 14/2018 |
DIVISION: | Civil |
PROCEEDING: | Trial |
ORIGINATING COURT: | Cairns |
DELIVERED ON: | 22 January 2021 |
DELIVERED AT: | Cairns |
HEARING DATE: | On the papers |
JUDGE: | Fantin DCJ |
ORDER: | The defendants pay 80% of the plaintiffs’ costs of the proceeding assessed on the standard basis, if not agreed. |
CATCHWORDS: | PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF QUESTIONS – where the plaintiffs were successful on two out of three events or questions – whether the court should exercise discretion – whether fraction of costs should be ordered |
LEGISLATION: | Uniform Civil Procedure Rules 1999 r 681, r 684 |
CASES: | King & Anor v Fister & Anor [2020] QDC 333 Mio Art Pty Ltd v Mango Boulevard Pty Ltd (No 3) [2013] QSC 95 Aion Corporation Pty Ltd v Yolla Holdings Pty Ltd & Anor [2013] QSC 216 |
COUNSEL: | C Ryall for the plaintiffs M Jonsson QC for the first and second defendants |
SOLICITORS: | Preston Law for the plaintiffs Murray Lyons for the defendants |
- [1]This judgment deals with the costs of the proceeding I determined on 22 December 2020 in King & Anor v Fister & Anor [2020] QDC 333.
- [2]Summarising, there were three broad issues for determination:
- whether sale proceeds of $64,032.90 were held on trust for the plaintiffs;
- whether the plaintiffs were entitled to $37,821.08 in equitable damages; and
- the defendants’ counterclaim of $7,787.12.
- [3]The plaintiffs succeeded on the first and third issues, but failed on the second.
- [4]The starting point is Uniform Civil Procedure Rules (UCPR) r 681, by which costs follow the event, unless the court orders otherwise. It has been held that the words ‘follow the event’ are to be read ‘distributively’, meaning that where there are two or more issues or questions in an action, each of them is, or gives rise to, an ‘event’ for which the costs are to be determined separately.[1]
- [5]Under r 684 UCPR, the court has power to apportion the costs. For that purpose, the court may declare what percentage of the costs of a proceeding is attributable to particular parts of the proceeding.
- [6]The plaintiffs submit that there is no basis for any order other than the usual order, that costs follow the event. There were no relevant offers to settle made pursuant to the rules or otherwise.
- [7]The plaintiffs seek an order that the defendants pay the plaintiffs’ costs of the proceeding, including any reserved costs, to be assessed on the standard basis pursuant to the District Court Scale, if not agreed.
- [8]The defendants submit that the equitable damages issue was discrete; that it occupied a considerable part of the pleadings and the evidence at the trial; and it was material in terms of quantum (lying somewhere between the quantum associated with each of the other two issues).
- [9]The defendants submit that, applying a rough apportionment, ‘intelligently made’,[2] and as authorised by UCPR r 684(2), the plaintiffs should be confined to recovery of two thirds of their costs of and incidental to the action (including the counterclaim) to be assessed on the standard basis, if not agreed.
- [10]The plaintiffs claimed for equitable damages equal to the amounts lost by reason of the defendants’ breach of trust and/or fiduciary duty in the amount of $37,821.08. I found that the trust relationship and any fiduciary obligations were breached. However, I was not satisfied that those breaches resulted in the plaintiffs suffering the loss claimed of $37,821.08.
- [11]The hearing occupied two days, during which oral evidence was given and a large number of documents tendered. Most of the evidence and submissions was directed to the facts surrounding or necessary for the determination of the first issue, on which the plaintiffs were successful.
- [12]The quantum of the equitable damages claim was largely based upon the expert evidence of an accountant, Mr Hastings. He prepared a report and gave oral evidence. Including cross examination, his oral evidence occupied only minutes of the hearing. This issue also occupied little consideration in submissions.
- [13]The counterclaim similarly occupied little time in evidence or submissions.
- [14]The plaintiffs have been largely, but not entirely, successful. It would be unfair to award the entirety of the costs to the plaintiffs when they failed on a distinct issue, being the quantum of the equitable damages claim. This is a case in which it is appropriate to apportion the costs.
- [15]Given my impression as to where the costs in the proceeding are likely to have been incurred, and because I think it is desirable to avoid the difficulties of assessment of costs based on separate events or questions decided in the proceeding, in my view the appropriate order is that the defendants pay 80% of the plaintiffs’ costs of the proceeding to be assessed, if not agreed. Such an order, as a rough apportionment, would be fair and reasonable. It would reflect the considerations that the plaintiffs should obtain the costs of the central questions in the proceeding but that they were not entitled to the order sought by way of equitable damages.
Conclusion
- [16]The defendants should pay 80% of the plaintiffs’ costs of the proceeding assessed on the standard basis, if not agreed.