Schebella v Schebella & Anor (No 2)
[2025] QDC 79
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- Schebella v Schebella & Anor (No 2)[2025] QDC 79
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Schebella v Schebella & Anor (No 2)[2025] QDC 79
Schebella v Schebella & Anor (No 2)[2025] QDC 79
DISTRICT COURT OF QUEENSLAND
CITATION: | Schebella v Schebella & Anor (No 2) [2025] QDC 79 |
PARTIES: | KEVIN CHARLES SCHEBELLA (Plaintiff) v MARK ANDREW SCHEBELLA (First Defendant) and KAREN JANE SCHEBELLA (Second Defendant) |
FILE NO/S: | 121/2019 |
DIVISION: | Civil |
PROCEEDING: | Civil Claim |
ORIGINATING COURT: | District Court of Queensland |
DELIVERED ON: | 12 June 2025 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | Heard on written materials provided up to 4 April 2025 |
JUDGE: | Long SC DCJ |
ORDER: |
|
CATCHWORDS: | JUDGMENT ORDERS – PRONOUNCEMENT – PUBLICATION OF REASONS – whether judgment has been pronounced – where UCPR 663(2) allows the publishment of reasons before any final order is made – whether it is appropriate to reopen the proceeding, so as to correct any error which might be identified in the reasons which have been published. INTEREST – whether and in what amount interest pursuant to s 58 of the Civil Proceedings Act 2011 should be awarded. PROCEDURE – CIVIL PROCEEDINGS – COSTS – where the general rule is that costs follow the event – where the plaintiff had a lack of success in alternative claims and whether it is subsequently appropriate to reduce costs due to the unsuccessful separate causes of action – whether those costs ought to be fixed by the Court or be subject to assessment under the UCPR 687. |
LEGISLATION: | Civil Proceedings Act 2011 ss 4, 58(3), 59 and Schedule 1 Corporations Act 2001, s 197 Trusts Act 1973, s 113 Uniform Civil Procedure Rules 1999, r 4, 388, 658(1), 659, 660, 661, 663(2), 667 and 668 |
CASES: | AGL Sales (Qld) Pty Ltd v Dawson Sales Pty Ltd (No 2) [2009] QSC 75 Australian Securities and Investments Commission v Atlantic 3-Fnancial (Aust) Pty Ltd (No.3) [2008] 2 Qd R 298 Farrar v Julian-Armitage [2016] QCA 141, [5] (citations omitted). Hartley v Hartley (2022) 10 QR 791 Latoudis v Casey (1990) 170 CLR 534 Oshlack v Richmond River Council (1998) 193 CLR 72, 97 Rogers v Roche [2018] 1 Qd R 515 Schebella v Schebella & Anor [2025] QDC 16 Smith v NSW Bar Association (1992) 176 CLR 256, 265 Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39 Vision Eye Institute Ltd v Kitchen (No 3) [2015] QSC 164 |
COUNSEL: | M White for the Plaintiff The first and second defendants appeared on their own behalf |
SOLICITORS: | Queensland Legal for the Plaintiff The first and second defendants appeared on their own behalf |
Introduction
- [1]On 28 February 2025, the Court pronounced that:
“I will publish reasons for my conclusion that there will be judgment for the plaintiff against the defendants in the sum of $225,000, upon the cause of action in debt due and owing, but not otherwise, with the parties having opportunity to address the form of order to be made in that respect and as to any further or incidental orders.”[1]
A timetable as to the provision of further written submissions was ordered for the then agreed position that the matter would, subject to any determination of the Court otherwise, be “adjourned for final orders to be determined on the papers” upon those further written submissions.[2]
- [2]Two things are to be immediately noted. First, that as indicated by the qualifying words “but not otherwise”, the claim upon which the judgment has been pronounced in this matter included a number of additional and alternative causes of action, which were not found to have been proven or established. Secondly, that the responses of the parties to the finalisation of the further and incidental issues have been markedly different.
- [3]As is noted in the published reasons, the defendants have not consistently, through the course of this litigation, had legal assistance. Although their legal representative appeared for the publication of reasons on 28 February 2025, when the directions as to the hearing of the incidental issues on written submissions were made, the defendants have reverted to being litigants in person in making their further written submissions. That development was not anticipated in the making of those directions and has not served to make the resolution of the issues left open on 18 February 2025 any simpler.
- [4]Because it will affect, at least, the further consideration of the issue as to interest to be allowed on the judgment of the Court, it is first necessary to deal with a misconception in the further submissions for the plaintiff. Those submissions proceed upon the basis that on 18 February 2025, the pronouncement of the Court was an order, in the nature of a judgment.[3] As defined for the Civil Proceedings Act 2011,[4] and adopted for the interpretation of the Uniform Civil Procedure Rules 1999 (UCPR), unless otherwise indicated or required by context or subject matter,[5] “order includes a judgment, direction, decree, decision or determination of a court whether final or otherwise”. Relevantly:
- pursuant to UCPR 658(1): “the court may, at any stage of a proceeding… make any order, including a judgment, that the nature of the case requires”;
- UCPR 659 provides that:
“Final relief granted in a proceeding started by claim is granted by giving a judgment setting out the entitlement of a party to payment of money or another form of final relief”; and
- UCPR 660 that “an order is made when the person making the order… pronounces the order in court”.
- [5]The difficulty for the stated position of the plaintiff is that the reference to the pronouncement made on 18 February 2025, omits and does not recognise the effect of the initial words of that pronouncement: “I will publish reasons for my conclusion that” as immediate context for the assertion that “there will be judgment for the plaintiff” and the order made adjourning the matter “for final orders to be determined on the papers”.[6] Consistently with the intention of the Court on 18 February 2025 and as conveyed by those pronouncements, it is expressly provided in UCPR 663(2) that:
“The reasons of a court for a proposed order may be published before the order is made.”
As recognised, in comparable circumstances, in Hartley v Hartley,[7] there is yet to be any granting of final relief in the nature of a judgment relevantly “setting out the entitlement of a party to payment of money”, such as might then be filed pursuant to UCPR 661, as a necessary prerequisite for enforcement or any appeal.
- [6]Although it was not intended by the pronouncement and publication of reasons on 28 February that the invitation to address the form of the order to be made was to provide an opportunity for re-litigation of any aspect of the conclusion which has been pronounced, it is open to this Court to reopen this proceeding, particularly so as to correct any error which might be identified in the reasons which have been published. As is discussed in one of the authorities cited in Hartley v Hartley: Smith v NSW Bar Association,[8] such a power has long been recognised at common law and does not depend upon any provision in the UCPR.[9] The power is noted as discretionary and exercisable in order to correct identified error, but to be “exercised having regard to the public interest in finality of litigation” and cognisant of any available avenue of appeal.
- [7]In respect of the issues raised in the defendants’ further written submissions,[10] it suffices to observe that no potential error is identified such as to appropriately permit of an exercise of the power of this Court to reopen and reconsider its published findings. In particular, exercise of that power is not appropriate here so as to simply allow rearguing of contentious propositions which have already been concluded in the published reasons, or to simply reargue contentions as to the conclusions published as to the credibility of witnesses or the documentary evidence relied upon by the plaintiff.
Form of Order
- [8]For the plaintiff, the contention is that the appropriate form of order is simply that the defendants are to pay stipulated amounts of money to the plaintiff, being the debt of $225,000 and amounts respectively allowed for interest and cost. That is, without any further necessity to otherwise formalise the conclusion stated in the published reasons such as by dismissing the alternative causes of action pursued by the plaintiff. It will be necessary to deal with the plaintiff’s claims for interest and costs below.
- [9]In short, it is to be concluded that, as is the submission for the plaintiff, it suffices in accordance with the application of UCPR 659 for any execution of the judgment obtained by the plaintiff, for it to be pronounced in terms of setting out, in this case, the entitlement of the plaintiff to the payment of money, without any qualification of the basis of that entitlement. The basis of that entitlement is established in the reasons for judgment, those reasons being sufficient to inform the issues to be considered below as to the costs to be awarded to the successful plaintiff.
Interest
- [10]Before dealing with costs, it convenient to deal with the issue of interest payable to the date of judgment. As has been the claim of the plaintiff from the outset, interest may be allowed in relation to a proceeding in a court for the payment of money, including a proceeding for debt, “at the rate the court considers appropriate for all or part of the amount and for all or part of the period between the date when the cause of action arose and the date of judgment”, pursuant to s 58(3) of the Civil Proceedings Act 2011 (Qld). By way of contrast, s 59 of that Act separately provides for the recovery of interest on a money order debt “from the date of the money order”. Pursuant to s 4 and the dictionary in Schedule 1, “money order” is defined to mean “an order of the court, or part of an order of the court, for the payment of money, including an amount for damages, whether or not the amount is or includes an amount for interest or costs” and “money order debt” defined to mean “the amount of money payable under a money order”.
- [11]Accordingly and in the context of the discussion above, as to the effect of the pronouncement made and publication of reasons on 28 February 2025, the point at which that demarcation is effected by the making of the money order and effecting the money order debt, will be upon the publication of these reasons and the pronouncement of that money order, as it may also encompass any amounts for interest and costs.
- [12]It is appropriate to so allow for interest in accordance with the plaintiff’s filed claim and submissions, pursuant to s 58(3), by reference to the rate identified for the purpose of applying that provision to entering default judgement, pursuant to practice direction 6 of 2013. There is no contention made as to any other appropriate rate. The unacceptable contrary contention of the defendants is directed at the application of s 58(3) being excluded by s 58(2)(b), because this is “a proceeding for the payment of money on which interest is payable as of right whether because of an agreement”. The asserted premise of that contention resting in reliance upon the suggestion made by the plaintiff in Exhibit 12, as to the adoption of “interest of say 1%”.
- [13]The circumstances relating to that suggestion and how any offer which may have been made in that regard was not accepted and was not reflected in any ongoing agreement of the parties as to their financial arrangements, is the subject of findings in the reasons which have been published.[11] In any event and as correctly contended for the plaintiff, the interest claimed here relates to the period after there had been default under the agreement of the parties, by failure to repay the debt within (90) days of the demand for repayment made in the letter of 14 May 2019 . That is, from 12 August 2019. There is nothing in the evidence as to the agreement between the parties as to any right, let alone rate of interest, applicable to any such default under their agreement and therefore the application of s 58(3) is not excluded.
- [14]The solicitor for the plaintiff has provided a calculation of $73,672.42 to 14 March 2025, by utilising the application of the interest calculator tool on the Queensland Courts Website and the rates prescribed in practice direction 6 of 2013.[12] It will be necessary to add an additional amount of $4632.53 to bring this calculation to the date of judgment (90 days from 14 March to 12 June 2025 at 8.35% per annum).
- [15]Accordingly, the judgment will include an amount of $78,304.95 for interest.
Costs
- [16]There are essentially two issues in respect of the plaintiff’s claim to be awarded the costs of his successful claim. First, as to whether there ought to be some reduction due to the plaintiff’s lack of success upon the alternative claims and secondly, as to whether those costs ought to be fixed by the Court or be subject to assessment under the UCPR.
- [17]As to the first issue, it is appropriately contended for the plaintiff, that the Court must keep in mind that costs are awarded in a compensatory sense, to indemnify the successful party as to the expense incurred by reason of the legal proceedings, and not by way of punishment of an unsuccessful party.[13]As provided in UCPR 681, the costs of a proceeding lie in the discretion of the court “but follow the event, unless the court orders otherwise”. It is further correctly pointed out that although the proceeding was the subject of various alternative claims, the plaintiff was ultimately, or in the event, vindicated in his claim to recover $225,000 advanced by loan to the defendants and he seeks an order that the defendants pay his costs of the proceeding on the standard basis.
- [18]On the other hand, the defendants understandably point to the plaintiff’s lack of success on the several alternative causes of action pursued, giving rise to the need to consider whether this is an appropriate case for the Court to make an order for costs in relation to a particular question in, or a particular part of, the proceeding, as permitted by UCPR 684(1).
- [19]The plaintiff refers to the observation in AGL Sales (Qld) Pty Ltd v Dawson Sales Pty Ltd (No 2),[14] that:
“… ordinarily the fact that a successful plaintiff fails on particular issues does not mean that the plaintiff should be deprived of some of its costs, although it may be appropriate to award costs of a particular question or part of a proceeding where that matter is definable and severable and has occupied a significant part of the trial.”
Further, it is recognised for the plaintiff, by reference to Vision Eye Institute Ltd v Kitchen (No 3),[15] that:
“… in exercising its discretion in relation to costs, the court is entitled to take an impressionistic and pragmatic view as to what were the real heads of controversy in the litigation and will strive to avoid assessments of costs in a complicated form, according to issues in the technical sense.”
But it is to be noted that the immediately following context is the following observation:
“However, this does not detract from the general rule that costs follow the event, or relieve a party which seeks to invoke the discretion under r 684 from the requirement to identify the “particular question” in a proceeding, or the “particular part” of a proceeding, in respect of which the court is asked to make an order for costs.”
- [20]The applicable principles have been more recently addressed by the Court of Appeal, in Speets Investment Pty Ltd v Bencol Pty Ltd (No 2),[16] as follows (with some omission of citation of authority):
“[13] The word “event” in the general rule is to be approached distributively with the consequence that it refers to the event of an issue or of each separate issue, if there is more than one, in the proceeding: …
[14] It is important to recognise, however, that it does not follow from the foregoing that the application of the general rule should usually lead to costs orders which reflect different results on separate events or issues. The Court is given a broad discretion and is specifically empowered to determine that some other order is more appropriate.
[15] In practice, courts often take the approach of identifying heads of controversy or “units of litigation” (rather than what might technically be regarded as issues on the pleadings) regarding success or failure on the head of controversy or unit of litigation as the criterion for awarding costs: …
[16] The general approach is that there must be special or exceptional circumstances to warrant depriving a successful party of its costs and the mere fact that the successful party has been unsuccessful on some issues will ordinarily not be sufficient to do so: … On an appeal, for example, where a party has succeeded on one of two ways to the same outcome, the Court of Appeal might well regard the costs of the second way on which that party failed as not so distinct conceptually or practically as to warrant making a costs order which reflected that party’s failure: … On the other hand, one circumstance in which it might be appropriate to award costs of a particular question or part of a proceeding is where that matter is definable and severable and has occupied a significant part of the proceeding: …
[17] Of course, it does not follow that an issues-based costs order should always be made in circumstances analogous to those described by McMurdo J in BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No 2). Where there are multiple issues which are determined in different directions as between the parties, a court might form an overall impression having regard to the significance of the issues, the way they were determined, and the amount of time and cost spent on them, and order one party to pay a proportion of another party’s costs as a way to reflect fairly the parties’ comparative success or failure in the outcome which was obtained. Courts often prefer to avoid the complicated form of costs assessment that would follow if different issues are determined in different directions as between the parties and costs were to be awarded in respect of issues. In this regard, in Wollongong Coal Ltd v Gujarat NRE India Pty Ltd (No 2) [2019] NSWCA 173, the New South Wales Court of Appeal observed at [9] where taking such an approach might result in a protracted assessment process:
‘… It is more efficient, and fairer, for the court simply to net-off [orders for issues in different directions as between the parties], which it is entitled to do (see Day v Humphrey [2018] QCA 321 at [13] per the court). Such an assessment will, undoubtedly be ‘rough and ready’ (Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 at [5]), and that is entirely permissible.’”
- [21]As the plaintiff contends, at the core of all of the alternative claims was the seeking of the vindicated relief as to the recovery of $225,000. Essentially, they may be regarded as alternative contentions as to attribution of personal liability of the defendants for the debt originally incurred by a company. It is further contended that the alternative claims were:
“… almost exclusively as to legal conclusions open on the same central set of facts, occupied no significant evidence at trial, and were not the subject of any evidence advanced by the defendants such that they were put to any specifically identifiable expense in responding to these aspects of the claim.”
Whilst those assertions may be accepted, for the reasons published for rejection of them, in respect of the alternative claims pursued as to damages for breach of contract and in restitution, there is more difficulty in application to the claims pursued in reference to s 197 of the Corporations Act 2001 and s 113 of the Trusts Act 1973. What must necessarily be recognised is not just the legal complications that reliance upon these causes of action introduced but also the factual considerations arising in the context of the lengthy history of the dealings of the parties in the context of the involvement of a corporate vehicle. In particular, in introducing considerations as to the conduct of the defendants as directors of the company extending beyond their involvement as such in respect of the novation of the original agreement made by the plaintiff with the company.
- [22]Notwithstanding that these alternatives were ultimately disposed of upon identification of absence of proof of the essential fundamentals of wrongful distribution of trust property or breach of trust, the preparation of this matter for trial must have been complicated by these alternatives and there was some attention in the evidence to the additional considerations which they raised and they were the subject of attention in the final submissions and served to further complicate the determination of this matter. In the circumstances and notwithstanding the substantial weight to be given to the essential success of the plaintiff, there should be some reduction in the costs to be recovered due to his lack of success on these substantially separate causes of action. The appropriate order will be to allow recovery of 90% of the plaintiff’s costs of the proceeding.
- [23]In coming to that conclusion, it is to be noted that despite the general assertions of the defendants, in their written submissions, of having made multiple offers to settle this dispute, there is no evidence of any such offer which may have affected the conclusion just stated. Indeed the only evidence touching upon any such assertion is that provided in an affidavit of the plaintiff’s solicitor,[17] to the effect of demonstrating the defendants response to the plaintiff’s letter of demand dated 24 May 2019 simply proposing the return of $225,000 in order to avoid any further dispute or legal proceeding, which in stark contrast to the history of this litigation, contained the following:
“If we receive notice from Dad that he wishes to redeem his investment in accordance with this Deed of Agreement, which was signed by all involved parties, we will return the balance of the investment and move on.”[18]
Otherwise and in reference to the outcome of the mediation,[19] it is noted that the only offer made by the defendants to settle this matter was to pay the sum of $20,000 (inclusive of costs).[20]
- [24]As to the second issue, the plaintiff points to substantial reasons for entertaining the prospect of the Court fixing the amount of costs to be so recovered, rather than, as is the alternative position of the plaintiff and understood as the preferred position of the defendants, for allowance of assessment under the UCPR.
- [25]In respect of that prospect, it is first noted that such an approach is permitted pursuant to UCPR 687(2)(c) as a departure from the general statement of position in UCPR 687(1), that:
“If, under these rules or an order of the court, a party is entitled to costs, the costs are to be assessed costs.”
Further, reference is made to Practice Direction 3 of 2007, at paragraph 3(a), where it is noted that:
“The court has a broad discretion to fix costs, and will do so where that will avoid undue delay and expense, but only provided the court is confident to fix costs on a reliable basis”.
This may be seen as reflective of recognised principles that:
- That the purpose of making such an order is to save the parties the time, trouble, delay and expense and aggravation in protracted litigation arising out of assessment of costs.[21]
- “It is not necessary for the party seeking such an order to supply material of a kind that is required in an assessment of costs, but the power to fix costs ordinarily should be exercised only where the supporting material gives the Court sufficient confidence that the costs claimed were reasonably incurred and are reasonable in amount”.[22]
- “It is implicit in r 687(2)(c)’s provision for the fixing of costs by the court, as an alternative to an assessment of costs, that the process to be undertaken by the court will not replicate a costs assessment. The process is intended to be speedy and inexpensive to fix a gross sum broadly, without the specificity involved in an assessment of costs. As this court observed in Goodwin v O'Driscoll:
‘Fixing costs is intended as a summary determination of what is fair and reasonable for costs in the circumstances. It is not intended to mimic an assessment of costs.’”[23]
- [26]For the plaintiff, it is noted that if undertaken by the Court, the process of fixation of costs should only be upon evidence sufficient to enable the determination of an appropriate sum, upon an approach which is logical, fair and reasonable and in avoidance of prejudice to either party by overestimation or underestimation of any reduction upon the costs estimates provided to the Court.[24] The plaintiff’s experienced solicitor has provided an affidavit setting out the costs which have been incurred by the plaintiff in the extensive history of this litigation over more than 5 years since May 2019 and setting out a proposed process of fixation of an amount for costs,[25] which encompasses the following features:
- The tabulation of incurrence of costs in the sum of $206,292.49, including some estimation of further costs of submissions in reply to bring the matter to the point now under consideration, summarised as:
- (i)$91,160.66 for counsels fees;
- (ii)$104,721.11 for legal professional fees (including reference to the basis upon which such fees have been incurred at an hourly rate of $440, including GST, for the work as was mostly performed by Mr Turner and $165 per hour, including GST, for other administrative or paralegal work performed in the matter); and
- (iii)$ 10,410.70 for disbursements (including $4,950.00 for the plaintiff’s 50% share of the costs of an appointed mediator);[26]
- (i)
- The exclusion of an amount of $37,980.45, comprising barristers’ fees totalling $15884.01, legal professional fees totalling $18,305.52 and disbursements totalling $3,457.74, identified as being referable to the two instances in interlocutory applications where orders have been made to exclude the plaintiff’s recovery of related costs, being:
- (i)an order made on 8 May 2020 that the first and second defendants pay the plaintiff’s costs of that application to and including 20 January 2020 and for the parties to bear their own costs thereafter; and
- (ii)a further order made on 24 June 2021 awarded the costs of a separate interlocutory application to the defendants.
- (i)
- The tabulation of incurrence of costs in the sum of $206,292.49, including some estimation of further costs of submissions in reply to bring the matter to the point now under consideration, summarised as:
The stated conclusion, is as to an amount of $168,312.04, comprising $75,276.66 in barrister’s fees, $86,415.59 in legal professional fees and $6,619.79 in disbursements (including the plaintiff’s share of the mediator’s fees);[27]
- The plaintiff’s solicitor then, on the basis of his experience, expresses opinions that, upon an assessment of costs the balance of the barrister’s fees and disbursement would be unlikely to attract any further reduction, whereas “it usual that a costs assessment process may determine some Legal Professional Fees are (despite their incurrence) unrecoverable on a standard basis of assessment”, generally noted to be on bases of removal of “certain “client based’ or ‘administrative’ or ‘duplication’ or ‘research’ items of work” and that this may result in reduction of the actually incurred costs by 10% to 35%;[28] and
- It is then proffered that, in the circumstances related to this matter and particularly where it is asserted that despite a change of firm name during the course of the proceeding, Mr Turner has retained the carriage of it and with their being little time spent in supervision of the small amount of staff involvement in the matter, there only be further reduction of the identified amount of $86,415.59 in legal professional fees by 20%, to an amount of $69,132.47 and the fixing of costs in the amount of $151,028.92.[29] It is then clarified that this would include a similar reduction of those costs recoverable by the plaintiff in accordance with the order made on 8 May 2020.[30]
- [27]For the plaintiff, it is contended that this analysis provides an appropriate basis upon which to fix the costs recoverable (before any reduction to 90% recovery of costs generally, as has otherwise been determined by the Court) at $151,028.92. The desirability of fixing the costs at that or some other appropriate amount, is understandably premised on the long litigation of this matter and, also noting the issues now raised by the defendants as to dissatisfaction with the reasoning of the Court as to the debt owing to the plaintiff. Reference is made to the parameters of the assessment which has been completed in respect of the defendants’ recovery of costs pursuant to the order made on 24 June 2021, where the defendants’ claim for $30,095.92, in the context of asserting, on objection, that $14,911.54 was payable, with the outcome of the assessment being that the plaintiff is to pay $22,137.53 assessed costs and the assessor’s fee of $4,400.00.[31] It is further pointed out that the plaintiff’s own costs in respect of that assessment was an additional $3,754.80, and therefore, with the assessor’s fee, the total incurrence of $8,154.80 or approximately 37% of the costs assessed at $22,137.53.[32] The solicitor also opines as to the prospect of a lengthy costs assessment, with some detailed analysis of potential costs of specified components and of the plaintiff incurring between $29,700.00 and $44,000.00 in additional costs, with a distinct prospect of a substantial increase in the costs which may be payable by the defendants in the outcome.[33]
- [28]The defendants, of course, seek to set off the costs already assessed in their favour. In apparent reliance upon a much more substantial reduction than the Court has been prepared to make to the costs recoverable by the plaintiff, due to his failure to establish other pleaded causes of action, there are contentions ranging from the parties bearing their own costs, to an order that the defendants pay the plaintiff the amount of $43,341.59 for costs. Relevantly, the defendants do point to the numerous amendments made to the plaintiff’s claim and statement of claim through to and including those allowed, by leave, at the commencement of the trial and in identification of the causes of action pursues at trial. Otherwise, there would not appear to be any acceptance of or suggested modification of the plaintiff’s contention as to fixing costs.
- [29]The advantages of this Court fixing the costs in this matter are evident and the materials provided by the plaintiff provides a sufficient basis to permit of such an order. However, there are two considerations which create some hesitancy in doing so. First, in all of the circumstances, including the point raised by the defendants as to the difficulties in the identification of and pleading of the plaintiff’s claims, the plaintiff’s suggestion reduction of 20% of only the legal professional fees may be regarded as too modest. A more appropriate conclusion might be to apply an overall reduction of 25%. The outcome would then be to take 90% of the amount of $168,312.04, identified by the plaintiff after exclusion of the costs for which it has been previously determined the plaintiff is not entitled to recover, which is $151,480.84 and then reduce that by 25% to $113,610.63 as the costs recoverable by the plaintiff, subject to setting off what is understood to be the entitlement of the defendants to $26,537.53.
- [30]Secondly and in the context of the submissions in respect of this issue having occurred in writing and without any opportunity to respond to this proposed modification of the proposal put in writing and any meaningful engagement of the defendants in responding to the materials relied upon by the plaintiff, the parties should be given some opportunity to respond as to whether there is any further opposition to the avoidance of further incurrence of substantial costs. The only alternative being an order which allows for agreement as to the amount to be paid or assessment on the standard basis.
Conclusion
- [31]In these circumstances and subject to an opportunity for the parties to address the alternatives in the second proposed order, the appropriate orders are that:
- The First and Second Defendants are to pay the plaintiff the sum of $303,304.95 (including $78,304.95 for interest).
- The First and Second Defendants are to pay 90% of the plaintiff’s costs of the proceeding, fixed in the amount of $113,610.63 / or alternatively, as agreed or assessed on the standard basis.
Footnotes
[1] T18/2/25 1-2.1-5. Written reasons were published: Shebella v Schebella & Anor [2025] QDC 16 and the pronouncement was in accordance with those reasons, in particular at [130].
[2] T18/2/25 1-3.24-29.
[3] See Plaintiff’s Written Submissions filed 14/3/25, at [3]-[4].
[4]Civil Proceedings Act 2011, s 4 and Schedule 1 Dictionary.
[5] See s 4 and the definition of “order” in Schedule1 of the Civil Proceedings Act 2011 and UCPR 4, there being no definition of “order” in the Dictionary in Schedule 3 of the UCPR.
[6] See paragraph [1], above.
[7] (2022) 10 QR 791, [24].
[8] (1992) 176 CLR 256, 265.
[9] Eg: UCPR 388, 667 and 668, where the application of each provision is premised upon an order having been made.
[10] Defendants’ written submissions filed 28/3/25, at [21]-[44].
[11]Schebella v Schebella & Anor [2025] QDC 16, [62-72].
[12] Affidavit of M J Turner filed 14/3/25, [4]-[9] and MJT-1.
[13]Latoudis v Casey (1990) 170 CLR 534, 542-543; Oshlack v Richmond River Council (1998) 193 CLR 72, 97.
[14] [2009] QSC 75, [15], in specific reference to earlier observations in BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No 2) [2009] QSC 64.
[15] [2015] QSC 164, [13].
[16] [2021] QCA 39, [13]-[17].
[17] Affidavit of M J Turner affirmed 4/4/25 and filed 13/5/25.
[18] Ibid at MJT-3. Cf: Defendants’ written submissions filed 28/3/25, [10].
[19] Cf: Defendants’ written submissions filed 28/3/25, [12].
[20] Affidavit of M J Turner affirmed 4/4/25, and filed 13/5/25 [9].
[21]Australian Securities and Investments Commission v Atlantic 3-Fnancial (Aust) Pty Ltd (No.3) [2008] 2 Qd R 298, [32](a), in reference to Leary v. Leary [1987] 1 W.L.R. 72, 76 and Beach Petroleum N.L. v. Johnson (No. 2)(1995) 57 F.C.R. 119.
[22]Rogers v Roche [2018] 1 Qd R 515, [17].
[23]Farrar v Julian-Armitage [2016] QCA 141, [5] (citations omitted).
[24] See: Plaintiff’s written submissions filed 14/3/25, at [14] with particular reference to Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119, 123-4 and Harrison v Schipp (2002) 54 NSWLR 738, [22].
[25] Affidavit of M J Turner filed 14/3/25.
[26] Ibid at [19]-[20] and MJT-2.
[27] Affidavit of M J Turner filed 14/3/25, [22]-[24].
[28] Ibid at [26]-[29].
[29] Ibid at [30]-[33].
[30] Ibid at [34]. It is otherwise note at [35](a) that a costs statement and notice of objection have been exchanged in respect of these costs but there is yet to be any appointment of an independent assessor, in circumstances where the broad claims are as to $16,523.70 for the plaintiff and the defendants asserting a range of nil to $5486.98 as payable.
[31] Affidavit of M J Turner filed 14/3/25, at [35](b).
[32] Ibid at [37].
[33] Ibid at [39]-[44].