Roma Transport Services Pty Ltd v Radial Drilling Pty Ltd (No 2)
[2016] QMC 26
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- Unreported Judgment
- Roma Transport Services Pty Ltd v Radial Drilling Pty Ltd (No 2)[2016] QMC 26
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Roma Transport Services Pty Ltd v Radial Drilling Pty Ltd (No 2)[2016] QMC 26
Roma Transport Services Pty Ltd v Radial Drilling Pty Ltd (No 2)[2016] QMC 26
MAGISTRATES COURTS OF QUEENSLAND
CITATION: | Roma Transport Services Pty Ltd v Radial Drilling Pty Ltd (No 2) [2016] QMC 26 |
PARTIES: | Roma Transport Services Pty Ltd (Judgment Creditor) V Radial Drilling Pty Ltd (Judgment Debtor) |
FILE NO/S: | M265/15 |
DIVISION: | Magistrates Courts |
PROCEEDING: | Civil |
ORIGINATING COURT: | Toowoomba Magistrates Court |
DELIVERED ON: | 2 December 2016 |
DELIVERED AT: | Toowoomba Magistrates Court |
HEARING DATE: | On the Papers |
MAGISTRATE: | G. Lee |
ORDER: | No order as to costs. |
CATCHWORDS: | Procedure – Costs |
LEGISLATION: | The following legislation was cited: Uniform Civil Procedure (Fees) Regulation 2009, reg 5, Schedule 2 Part 2 Uniform Civil Procedure Rules 1999, rules 681, 791 The following cases were cited: Australian Securities and Investment Commission v Cyclone Magnetic Engines (No 2) [2009] QSC 201 Deeson Heavy Haulage Pty Ltd v Cox (No 2) [2009] QSC 348 Donald Campbell & Co Ltd v Pollak [1927] AC 732 Nicholl Holdings Pty Ltd v Maharaj (No 2) [2008] QSC 133 |
SOLICITORS: | Frank Jongkind & Co for the applicant (enforcement officer) Wonderly & Hall, Solicitors for the plaintiff (judgment creditor) |
- [1]On 18 November 2016 I delivered judgment in an application by an enforcement officer[1] under rule 791 Uniform Civil Procedure Rules 1999 (UCPR) seeking a review of a registrar’s decision dated 22 September 2016 which disallowed in part an item of costs claimed under the Uniform Civil Procedure (Fees) Regulation 2009 (the regulations) in the execution of a money judgment. I refer to those reasons for the context and history of the matter.
- [2]I directed the solicitors for the enforcement officer and judgment creditor file and serve any submissions on costs by 4:00pm 23 November 2016 and directed that costs will be determined on the papers. These reasons deal with the question of costs.
- [3]The enforcement officer does not seek costs. He resists an order for costs in favour of the judgment creditor on the basis that:
- The enforcement officer successfully sought leave to have the registrar’s decision reviewed, and
- The judgment creditor was not a necessary party to the application for leave to appeal and was not successful in its opposition to the application[2].
- [4]On the other hand, in reliance on rule 681 UCPR and cited authorities, the judgment creditor seeks costs in accordance with Item 10, Column F Schedule 3 UCPR in the amount of $515 based on the quantum of the enforcement officer’s original claim for possession fees of $11,626.60.
- [5]An alternative submission for the judgment creditor was that there should be no order as to costs[3].
- [6]In considering the material after having granted leave under rule 791 UCPR, I varied the registrar’s decision by modestly increasing the enforcement officer’s claim under the Uniform Civil Procedure (Fees) Regulation 2009[4] for possession fees from $1,220 to $1,491.20 which is still far short of his original claim of $11,626.60.
- [7]The enforcement officer originally claimed $11,626.60 based on the seized goods being in his “actual possession” for 122 days from 4 April 2016 to 1 August 2016 at $95.30 per day.
- [8]The first point to note is that the enforcement officer readily conceded at the hearing that the claim should be for 111 days. This was his error which was not identified by the registrar. This constituted one ground for the granting of leave under rule 791.
- [9]The additional ground for granting leave was that the enforcement officer was not afforded the opportunity of responding to a submission by the judgment creditor to the registrar about retaining the moneys in court to satisfy another judgment. The enforcement officer succeeded on that point.
- [10]The judgment creditor advanced three threshold arguments all of which were not successful[5]. The first was that the enforcement officer had no standing to challenge the registrar’s decision. Secondly, that the application under rule 791 is neither an appeal nor case stated within the meaning of Part 3 of Chapter 18 UCPR. Thirdly, if this is an appeal, the enforcement officer had not complied with all procedural requirements in Chapter 18.
- [11]A major point argued was whether the enforcement officer was entitled at all to any “possession fees”. This hinged on whether he was in “actual possession” of the seized goods while they were in secure storage with Maktrans. The registrar’s determination, confirmed by me, was that the enforcement officer was in “actual possession”. The judgment creditor was unsuccessful in advancing submissions that the goods were not in the enforcement officer’s “actual possession”[6].
- [12]Once it was determined that the enforcement officer was in “actual possession” and therefore entitled to possession fees, the next point of contention was the daily rate that should be paid. The maximum allowed in the regulation was $95.30. The registrar allowed $10. The enforcement officer was unsuccessful in obtaining an increase in that daily rate[7].
- [13]The reason the enforcement officer’s entitlement to possession fees was increased from $1,220 to $1,491.20 was unrelated to the submissions by the parties. First, the 122 days claimed was reduced to 111 days. This was conceded by the enforcement officer. Secondly, this reduction was offset by the undisputed fact that the enforcement officer was in possession of the seized goods for 4 days before going into secure storage. Upon review, I allowed four (4) days at the maximum rate of $95.30 per day.
- [14]It is fair to observe that the enforcement officer was substantially unsuccessful in the outcome.
- [15]Rule 681 UCPR provides:
681 General Rule about costs
- (1)Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.
- [16]In seeking costs the judgment creditor submitted that there is an overriding discretion to award costs and that there are circumstances in which a court will depart from the general rule that costs follow the event: see Nicholl Holdings Pty Ltd v Maharaj (No 2) [2008] QSC 133 at [10] – [11]; Australian Securities and Investment Commission v Cyclone Magnetic Engines (No 2) [2009] QSC 201 at [15] – [16]; Deeson Heavy Haulage Pty Ltd v Cox (No 2) [2009] QSC 348 at [61].
- [17]The general rule as to costs and the meaning of “event” has been considered in many cases but it is not necessary to mention these further given my ultimate view[8].
- [18]Further, the judgment creditor alternatively submitted that the court has an absolute and unfettered discretion to award costs or not award costs: Donald Campbell & Co Ltd v Pollak [1927] AC 732 at 811, 812.
- [19]The enforcement officer received only a minimal net benefit for reasons unrelated to the primary arguments. While he succeeded on the “actual possession” issue, he was unsuccessful as to the daily rate.
- [20]The judgment creditor submitted that the costs incurred by the judgment creditor in resisting this application far outweighed the minimal benefit received by the enforcement officer. However, it was unsuccessful on the legal issues agitated by it.
- [21]I do not accept the enforcement officer’s submission that the judgment creditor was not a necessary party to the application for leave to appeal under rule 791. Rule 750, which applies to applications under rule 791 by virtue of rule 785 UCPR, contemplates the inclusion of a party to an appeal if that party’s interests may be affected by the appeal. Clearly, the interests of the judgment creditor may be affected in recovering sufficient funds to satisfy this judgment debt by a decision on this application.
- [22]In my view, there should be no order as to costs.
Footnotes
[1] As defined in Schedule 5 Supreme Court of Queensland Act 1991.
[2] Letter dated 23 November 2016 from solicitors for the enforcement officer to the court.
[3] A further alternative submission is not relevant given the enforcement officer is not seeking costs.
[4] Section 8 Part 2 of Schedule 2.
[5] Paras [24] to [32] of my judgment delivered 18 November 2016.
[6] Paras [40] to [53] of my judgment delivered 18 November 2016.
[7] Paras [6] to [9], [13], [14] & [61] to [69] of my judgment delivered 18 November 2016.
[8] For example Oshlack v Richmond River Council (1998) CLR 72 at 97; Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 3) [2003] 1 QdR 26 at 79 – 85.