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Pathak v Anna Wilshire as trustee for the Jackson Family Trust[2024] QMC 14

Pathak v Anna Wilshire as trustee for the Jackson Family Trust[2024] QMC 14

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Pathak & Anor v Anna Wilshire as trustee for the Jackson Family Trust & Anor [2024] QMC 14

PARTIES:

SUMEET PATHAK

(First Plaintiff)

AND

TRESSA JOSEPH

(Second Plaintiff)

v

ANNA WILSHIRE AS TRUSTEE FOR THE JACKSON FAMILY TRUST

(First Defendant)

AND

DOGTAINERS PTY LTD CAN 084 965 453 (BOTH IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE GRAYDON FAMILY TRUST)

(Second Defendant)

FILE NO/S:

5129/17

DIVISION:

CIVIL

PROCEEDING:

APPLICATION

ORIGINATING COURT:

Brisbane

DELIVERED ON:

2 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

On the Papers

MAGISTRATE:

Pinder

ORDER:

1)That the plaintiffs’ pay the defendants cost of and incidental to the proceedings on an indemnity basis.

2)That the costs of the proceedings be assessed by a cost assessor upon the basis of a claim for more than $50,000.

CATCHWORDS:

Costs – Indemnity on Standard Basis R702 and 703.

Calderbank offers. Fixing Costs – R693.

Schache v GP No 1 Pty Ltd (2012) QCA 233.

Minister for Immigration & Ethnic Affairs (Cth); Ex Parte Lai Qin [1997] HCA 6; 186 CLR 622.

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225.

J&D Rigging Pty Ltd v Agripower Australia Ltd [2014] QCA 23.

Springfield City Group Pty Ltd v Pipe Networks Pty Ltd (No 2) [2022] QSC 299.

Peter Carter Transport Pty Ltd v Swansway No. 2 Pty Ltd [2021] QDC 109.

COUNSEL:

Mr English (Solicitor) for the Plaintiffs

Ms F Lubett for the Defendants

SOLICITORS:

CIF lawyers for the Plaintiffs

Hamilton Locke for the Defendants

INTRODUCTION

  1. [1]
    On 27 February 2024 reasons were published and orders were made dismissing the proceedings for want of prosecution.
  1. [2]
    The parties were directed that in the event that costs could not be agreed, they were to file written outlines in respect of cost orders sought.
  1. [3]
    Costs have not been agreed and these then are the reasons in respect of the cost orders that are to be made.

THE PARTIES’ MATERIAL

  1. [4]
    The defendants have filed a further affidavit of Trent Anthony Thorne (affirmed 19 March 2024 and filed 19 March 2024).
  1. [5]
    The defendants’ submissions on cost rely however on the following:
  1. –Affidavit TA Thorne affirmed 6 December 2022 (and filed 7 December 2022).
  2. –Affidavit TA Thorne affirmed 23 August 2023 (and filed 23 August 2023).
  3. –Affidavit TA Thorne affirmed 19 March 2023 (and filed 19 March 2023).
  1. [6]
    The plaintiffs have not filed and do not identify that they seek to rely on any material.
  1. [7]
    Both counsel for the defendants and the plaintiffs’ solicitors have both filed submissions as follows:
  1. –Defendant’s costs submissions – filed 19 March 2024 (due to error only lately received).
  2. –Plaintiff’s costs submissions – filed 19 March 2024.

THE PARTIES CONTENTIONS

  1. [8]
    The defendants submit that the appropriate costs orders are that:
  1. The plaintiff pay the defendants’ costs of the proceeding on an indemnity basis and;
  1. Those indemnity costs be fixed in the sum of $110,000.00.
  1. [9]
    The plaintiffs submit that the appropriate costs orders are:
  1. That each party bear their own costs or in the alternative;
  1. “costs on a standard basis” – (which I take to be a concession that the plaintiffs ought pay the defendants costs of the proceeding on a standard basis).
  1. [10]
    The defendants’ submission on costs, in a conventional fashion, is confined to addressing the law, references offers to settle exchanged by the parties, and sets out a basis for the contention as to the orders sought.
  1. [11]
    It references, where appropriate, the evidentiary basis for those submissions including the reasons for judgement and affidavit evidence of Mr Thorne.
  1. [12]
    Rather less conventionally, the plaintiffs’ outline of submissions appears to be in part submissions and in part evidence.
  1. [13]
    The plaintiffs only reference to the affidavit evidence in the proceedings is at paragraph 27 of the submissions (referencing affidavits of Mr English and Mr Thorne), but is replete with assertions as to facts, not referenced to any proper evidentiary foundation, and in respect of which the plaintiffs contend have significance in respect of the courts exercise of discretion in relation to costs orders. By way of example:
  1. –Paragraph 26 – “the list of reasons provided for objecting to the further amended statement of claim were not provided until after the due date for filing an application pursuant to order 4 of Magistrate McKenzie made 3 February 2023.”
  • There is no referenced evidentiary basis for that.
  • On the plaintiffs’ own affidavit material, that contention is factually incorrect and potentially misleading.
  1. –In Mr English’s own affidavit affirmed 8 September 2023, he deposes in respect of this issue in these terms:

“[11] On 7 February 2023 I provided a first draft of further amended statement of claim to Hamilton Locke attached and marked BE-01 is a true copy of the correspondence and further amended statement of claim.

[12] On 22 February 2023 Hamilton Locke provided to me a small list of objections attached and marked BE-02 is a true copy of this correspondence.

[13] On 3 March 2023 I provided a copy of the proposed amendments. Attached and marked BE-03 is a copy of this correspondence and the proposed amended statement of claim.

[14] On 10 March 2023 Hamilton Locke advised that Hamilton Locke maintained objections to the draft pleadings.

[15] Further amendments were made to the draft claim and statement of claim and a further copy was provided to Hamilton Locke on 10 March 2023.

[16] On 15 March 2023 Hamilton Locke provided a correspondence outlining and identifying a number of what they labelled as deficiencies in the draft pleading. Attached and marked BE-04 is a copy of this correspondence.”

  1. –Mr English’s own affirmed evidence in his affidavit of 8 September 2023 (consistent with the documents exhibited to that affidavit) and referenced by the mandated timeframe in the orders of the court of 3 February 2023 confirm:
  1. The plaintiffs provided a further amended statement of claim on 17 February 2023.
  1. On 22 February 2023 the defendants responded with objections to the further amended statement of claim (within four days but two working days).
  1. On 3 March 2023 the plaintiffs provided a further, further amended statement of claim.
  1. On 10 March 2023 the defendants again responded maintaining their objections to the proposed pleadings.
  1. –The plaintiffs’ solicitors’ bare assertion that the defendants did not respond with objections “until after the due date for filing an application” is quite simply factually incorrect and untrue. The plaintiffs’ own material discloses that at best, the plaintiffs did not provide the proposed amended statement of claim until 3 March 2023.
  1. –“[32] The plaintiff was at all times seeking to minimise costs in the proceedings by seeking consent which was on all occasions withheld, prolonging the proceedings.”
  2. –“[36] …As the delay in these proceedings has at different times been the fault of all parties to the proceedings. Moreso, the defendants’ in the earlier period where the pleadings remain settled after closing for approximately four years…”
  3. –“[48] The plaintiff maintains it has reasonable prospects of success, at least in relation to the Australian Consumer Law and on its arguments at contract.

[49] Despite the findings of the court, the plaintiff has pressed the proceedings in good faith and at all times been transparent with the defendants.

[50] The plaintiff has not misstated any facts, made any false statement, or disregarded established law in the proceedings, and despite the plaintiffs’ adequate adherence to orders in strict sense, was taking effort to communicate with the defendants with the genuine intent of obtaining consent around the ASOC to be filed.”

  1. [14]
    It is also apparent that the plaintiffs seek to relitigate, in their contentions in respect of costs orders, matters ventilated in the substantive application which are the subject of the reasons and orders made on 27 February 2024, and which to date remain undisturbed.

THE PLAINTIFFS’ SUBMISSION – EACH PARTY SHOULD BEAR THEIR OWN COSTS

  1. [15]
    The plaintiffs’ submissions in this regard are confined to paragraph 36 – a bare, unsubstantiated, and not-developed contention by the plaintiffs’ solicitors. The plaintiffs have failed and their claim against the defendants has been dismissed.
  1. [16]
    The plaintiffs’ contentions for this unusual departure from the ordinary rule as to costs is founded on – a contention that both parties were at fault for delay and the defendants more so at an earlier stage in the proceedings. Again, the plaintiffs seek to relitigate findings of fact and law the subject of the reasons and orders made 27 February 2024.
  1. [17]
    This submission by the plaintiff is wholly unmeritorious and has no proper foundation, either factually or at law.

THE ORDINARY RULE AS TO COSTS

  1. [18]
    The defendants’ submissions at paragraph A1 neatly encapsulate the principles as to “general rule about costs.”
  1. [19]
    Rule 681 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) provides:

1)Costs of a proceeding, including an application of proceeding, are in the discretion of the court but follow the event, unless the court otherwise orders.

  1. [20]
    Clearly, uncontroversially both applications by the plaintiffs and defendants, the subject of the orders made 27 February 2024 are caught by the general rule about costs and the defendant, having succeeded in both, ought be entitled to their costs on those applications.
  1. [21]
    The defendants’ submissions correctly direct the court to the broader discretion in respect of the costs of the entire proceedings, dismissed by the orders made 27 February 2024.
  1. [22]
    The authority in Lai Qin[1] supports the contended proposition that the cost consequences of a successful application to dismiss the proceedings are within the discretion of the court.
  1. [23]
    The statement of principle by McHugh J in Lai Qin (ibid) informs the exercise of that discretion in the former case noting His Honour explained:

“In some cases, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action.”

  1. [24]
    The published reasons for the orders for dismissal for want of prosecution of the plaintiffs’ claim make positive findings as to the plaintiffs’ conduct which has been dilatory, non-compliant with directions orders of the court, and without explanation.
  1. [25]
    Applying the principles identified by the defendants to the circumstances of the orders for dismissal of the plaintiffs’ claim lead to the inevitable conclusion that the defendants ought recover not only their costs of succeeding in respect of both the applications which were before the court, but their costs of the entire proceedings.
  1. [26]
    As best as can be ascertained from the plaintiffs’ submissions, that is conceded as an alternative to their primary contention, noting that at paragraph 36 “the plaintiffs submit… or in the alternative costs on the standard basis.”
  1. [27]
    I find therefore, that subject to determining the appropriate basis (standard or indemnity) upon which the defendants’ costs ought be assessed, the defendants should recover their costs not only of the applications filed 23 August 2023 and 8 September 2023, but the costs of the entire proceedings.

BASIS FOR ASSESSMENT OF DEFENDANTS COSTS – STANDARD OR INDEMNITY

  1. [28]
    The defendants submit that the costs that the plaintiffs are ordered to pay, being the costs of the entire proceedings, ought be ordered on an indemnity basis.
  1. [29]
    The usual, or default, position is that the costs ordered to be paid are on a standard basis.[2]
  1. [30]
    Rule 703 (UCPR) provides:

“1) The court may order costs be assessed on an indemnity basis.

2)Without limiting subrule 1, the court may order that costs be assessed on an indemnity basis if the court orders the payment of costs - …

(c) of an application in a proceeding brought for non-compliance with an order of the court.”

  1. [31]
    Notwithstanding, and noting that rule 702(1) UCPR provides that costs ought be assessed on a standard basis “unless these rules or an order of the court provides otherwise,” rule 703 provides a basis for an order for costs to be assessed on an indemnity basis, obviously involving the exercise of a discretion.

INDEMNITY COSTS – THE RELEVANT PRINCIPLES

  1. [32]
    The defendants’ submissions as to costs conveniently direct the court to the principal authority on the order of indemnity costs, a decision of the Court of Appeal in Schache v GP No 1 Pty Ltd.[3]
  1. [33]
    There, Muir JA, noting the observations of Sheppard J in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 stated that:

“… the settled practice in Australia has been for costs to be awarded to the successful party to a proceeding on, what is in effect, the standard basis unless the circumstances warrant departure from that course. His Honour noted that some of the circumstances which had been through to warrant the making of an indemnity costs order were: … the engaging in misconduct that caused loss of time to the court and other parties; the commencement or continuation of proceedings for some ulterior motive ‘or in wilful disregard of known facts or clearly established law’; the making of allegations which ought never to have been made or the undue promulgation of a case by groundless contentions; and an imprudent refusal of an offer to compromise. Sheppard J concluded this list with the observation: ‘The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.””

  1. [34]
    The defendants submit that there are three special or unusual features of the current case of this matter that warrant a departure from the usual position as to standard costs and support the submission that costs of the proceedings be awarded on an indemnity basis.

THE PLAINTIFFS’ UNREASONABLE AND IMPROPER DELAY

  1. [35]
    The defendants point to the findings in the reasons for dismissal of the plaintiffs’ action, which reasons include findings:
  1. –That the event giving rise to the plaintiffs’ cause of action occurred on 4 January 2017, more than seven years ago.[4]
  2. –That litigation was commenced on 19 September 2017 – six years ago.[5]
  3. –That the litigation was characterised by significant periods of delay – in total more than four years. [6]
  4. –That the periods of delay were attributable to the plaintiff.[7]
  5. –That the litigation had not progressed even to the point where a properly pleaded and particularised claim by the plaintiffs had been articulated.[8]
  6. –That the delay was in part caused by the plaintiffs’ lawyers being dilatory with no explanation for that delay.[9]
  7. –That there is no satisfactory explanation for that delay, indeed, no explanation at all.[10]
  1. [36]
    Additionally, the defendants correctly contend that there has been unexplained non-compliance with court orders.
  1. [37]
    The reasons relevantly find that there was unexplained disobedience with court orders.[11]
  1. [38]
    The plaintiffs’ submissions in response do not directly address those matters, save that as noted, they seek to relitigate the undisturbed findings in the reasons and orders made 27 February 2024. The defendants have properly identified conduct by the plaintiffs by which they have unreasonably, improperly, and by unexplained non-compliance, delayed the proceedings.

THE PLAINTIFFS UNREASONABLY MAINTAINING A CLAIM FOR PUNITIVE/EXEMPLARY DAMAGES

  1. [39]
    The proceedings commenced by the plaintiffs sought – damages for vexation in the amount of $20,000.[12] 
  1. [40]
    The defendants direct the court to correspondence where the plaintiffs were put on notice and that the claim for vexation – “punitive damages” was not maintainable on the basis of the plaintiffs’ pleaded claim for breach of contract and under the Australian Consumer Law and noting the absence in the pleadings in tort for allegations of intentional harm.
  1. [41]
    That unmaintainable claim for punitive damages continued in the amended statement of claim filed 6 April 2018 and was not ultimately abandoned by the plaintiffs until the proposed further amended statement of claim delivered on 17 February 2023.
  1. [42]
    The defendants correctly submit, and I find that the plaintiffs unreasonably maintained a claim for punitive damages from the date of commencement of the proceedings on 19 September 2017 until it was sought to be formally abandoned on 17 February 2023.

THE DEFENDANTS’ OFFERS TO SETTLE

  1. [43]
    The defendants have made numerous offers to settle the proceedings (including prior to the commencement of proceedings).
  1. [44]
    The affidavit of TA Thorne affirmed and filed 19 March 2024 outlines the history of the defendants’ offers to settle.[13]
  1. [45]
    Uncontroversially the defendants have made the following offers to settle:
  1. On 8 February 2017 (well before the commencement of the proceedings on 19 September 2017), the defendants offered to pay the plaintiffs $5,000 in full and final settlement of the matter;[14]
  1. On 28 November 2017, the defendants offered to pay the plaintiffs $15,000;[15]
  1. On 29 March 2018, the defendants offered to pay the plaintiffs $15,000;[16]
  1. On 10 April 2018, the defendants offered to pay the plaintiffs $18,846;[17]
  1. On 11 July 2018, the defendants offered to pay the plaintiffs $25,000;[18] and
  1. On 4 July 2022, the defendants offered to pay the plaintiffs $25,000.[19]
  1. [46]
    The defendants’ offers to settle were all Calderbank offers and not offers to settle made under the provisions of the UCPR (Chapter 9 part 5).
  1. [47]
    The first of the defendants’ Calderbank offers was made prior to the commencement of proceedings by letter dated 8 February 2017. It is clearly expressed to be a Calderbank offer and puts the plaintiffs on notice that if they do not accept the offer and commence proceedings and obtain the judgement less favourable than the offer, the defendants will seek to rely on that correspondence and seek the plaintiffs to pay their costs on an indemnity basis from the date of the offer.[20]
  1. [48]
    Subsequent to the commencement of the proceedings, the defendants made a further five Calderbank offers in similar terms.
  1. [49]
    The plaintiffs rejected all of the defendants Calderbank offers to settle. The defendants’ submissions correctly direct the court to the decision of the Court of Appeal in J&D Rigging Pty Ltd v Agripower Australia Ltd [2014] QCA 23 to support statements of principle that:
  1. –The failure to accept a Calderbank offer is a matter to which a court should have regard when considering whether to order indemnity costs.
  2. –The refusal of an offer to compromise by itself does not warrant the exercise of the discretion to award indemnity costs, but the critical question is whether the rejection of the offer was unreasonable or imprudent in the circumstances.
  1. [50]
    The reasons published 27 February 2024 set out and make findings as to the plaintiffs’ conduct of these proceedings which from the outset have been found to be lax, unreasonable, replete with examples of unreasonable and unexplained delay, and after the elapse of six years still did not see the plaintiffs articulate a properly pleaded and particularised claim against the defendants.
  1. [51]
    The plaintiffs’ rejection of the defendants’ various Calderbank offers to settle must be considered in the context of the plaintiffs’ conduct and in particular the findings made in relation to the conduct (particularly the disobedience of court orders which ultimately resulted in the proceedings being dismissed.
  1. [52]
    The plaintiffs’ submissions in response are:
  1. –At paragraph 38 – offers made by the parties in July 2022 were considered and at a fraction of the overall quantum of the costs now claimed by the defendants in the proceedings.
  2. –At paragraph 49 – good faith negotiations.
  3. –At paragraph 51 – in relation to the offers made between the parties, the difference in quantum of those offers was not insubstantial but was of a quantum the plaintiff considered could be breached through further negotiations.

“It was this change of the approach by the defendants which ceased our settlement negotiations, leaving the plaintiff unable to accept what in hindsight appears an otherwise reasonable compromise.”

  1. [53]
    Those responses are self-evidently confused and confusing.
  1. [54]
    They do not, and do not purport to address, any of the principles relevant to the exercise of the discretion which the defendants’ seek in the award of costs on an indemnity basis.
  1. [55]
    In applying the principles enunciated by the Court of Appeal in Schache v GP No 1 Pty Ltd:[21]
  1. –The plaintiffs have unreasonably and improperly and without explanation delayed the proceedings.
  2. –The plaintiffs have an unexplained non-compliance with court orders.
  1. [56]
    I find the plaintiffs have:
  1. –Unreasonably, improperly, and without explanation delayed the proceedings.
  2. –Without explanation disobeyed and failed to comply with court orders.
  3. –After six years of the litigation being on foot, failed to reach a position where they have articulated a properly pleaded and particularised claim against the defendants.
  4. –For a period of five years and five months unreasonably maintained a claim for punitive/exemplary damages only abandoned in February 2023.
  5. –Failed to accept Calderbank offers to settle made by the defendants, commencing with the offer first in time on 8 February 2017 prior to the commencement of the proceedings.
  1. [57]
    The relevant principles in relation to Calderbank offers were summarised by Bond J in Springfield City Group Pty Ltd v Pipe Networks Pty Ltd (No 2) [2022] QSC 299 at [9]. His Honour identified the following as the relevant propositions, which I adopt:

“First, the usual rule is that where the Court orders the costs of one party to the litigation to be paid by another party, the order is for assessment of those costs on the standard basis.

Second, the Court will depart from the usual rule where the circumstances of the case warrant that course.

Third, one feature which may justify a departure from the usual rule is the rejection of a Calderbank offer to compromise. However, it is wrong to think that an offeree’s rejection of a Calderbank offer gives rise to a presumption that the offeree should pay the offeror’s costs on an indemnity basis if the offeree obtains a less favourable result than contained in the offer. Rather, the correct approach is to consider whether the rejection of the Calderbank offer, in all the circumstances, justifies a departure from the usual rule.

Fourth, the balance between the competing policy considerations of, on the one hand, appropriately encouraging settlement and, on the other, not discouraging potential litigants from bringing their disputes to the courts, is found by applying a test of ‘reasonableness.’ The policy rationale for requiring the offeree to indemnify the offeror for costs incurred after the offeree’s unreasonable rejection of an offer is that, from the time of the unreasonable rejection, notionally the real cause and occasion of the litigation is the unreasonable attitude adopted by the offeree.

Fifth, deciding the critical question of whether the offeree’s rejection of the offer is unreasonable in all the circumstances will always involve matters of judgement and impression. However, the discretion as to costs must be exercised judicially and is subject to review in accordance with the principles set out in House v R (1936) 55 CLR 499 at 505. Without being exhaustive concerning the considerations which should be taken into account, a court should ordinarily have regard to at least the following matters:

(a)The stage of the proceeding at which the offer was received;

(b)The time allowed to the offeree to consider the offer;

(c)The extent of the compromise offered;

(d)The offeree’s prospects of success, assessed as at the date of the offer;

(e)The clarity with which the terms of the offer were expressed; and

(f)Whether the offer foreshadowed an application for indemnity costs in the event of the offeree rejecting it.”

  1. [58]
    The plaintiffs, having regard to the entirety of their conduct and the six Calderbank offers which were made by the defendants, have acted unreasonably and imprudently in not accepting any of those offers.
  1. [59]
    In all the circumstances I am persuaded that the Plaintiffs have acted unreasonably, in the sense of justifying an award of indemnity costs from the point of the making of the first of the Calderbank offers on 8 February 2017 to reject such an offer.
  1. [60]
    That being the case, I am satisfied that there is a basis to depart from the usual rule and order the plaintiffs to pay the defendants’ costs on an indemnity basis.
  1. [61]
    The defendants are therefore entitled to an order that their costs of the proceedings be assessed on an indemnity basis.

THE QUANTUM OF THE INDEMNITY COSTS

  1. [62]
    The defendants seek the court assess and fix the costs.
  1. [63]
    The defendants submit that on the basis of the evidence contained in the affidavit of TA Thorne (affirmed and filed 19 March 2024) those costs on an indemnity basis ought reasonably be assessed and fixed in the sum of $110,000.00.
  1. [64]
    The claim brought by the plaintiffs was for the sum of $66,579.00 and sought interest thereon and costs. As of 17 February 2023, with the abandonment of the claim for punitive damages, that claim was reduced to $46,579.00. The plaintiffs’ correctly submit that in the Magistrates Court the default position is that the court will fix costs.[22] The defendants’ submissions accept that the court retains a discretion to refrain from fixing costs and order that costs be assessed by a cost assessor.
  1. [65]
    Rule 683(3) UCPR relevantly provides:

“However, the Magistrate may order that costs of the proceeding be assessed by a cost assessor if the Magistrate considers it is appropriate because of the nature and complexity of the proceeding.”

  1. [66]
    Whilst neither of the parties’ submissions directed the courts attention to it, Magistrates Court Practice Direction 18 of 2010 deals with fixed costs or costs to be assessed.
  1. [67]
    Relevantly, in relation to fixing costs, Practice Direction 18/2010 confirms:
  1. –The court has a broad discretion to fix costs … but only when the court is confident costs can be fixed on a reliable basis.
  2. –Where a court orders cost be assessed provides a mechanism for that assessment including the ability of the parties to particularise an object to the assessment.
  1. [68]
    The court does not have the benefit of that particularity in the material currently before it.
  1. [69]
    In Peter Carter Transport Pty Ltd v Swansway No. 2 Pty Ltd [2021] QDC 109, Cash DCJ in considering the discretion to be exercised under rule 683(3) by the Magistrates Court said at paragraph 46:

“The words of the present rule 683, and its antecedent provision, indicate there is a presumption in favour of a Magistrate fixing the costs of proceedings. I tis only when a case falls into an exceptional category because of its ‘nature and complexity’ that there might be an order for the assessment of costs.”

  1. [70]
    The nature and complexity of the proceeding and in particular, in respect of the costs sought to be fixed by the defendants is reflected by the affidavit of Mr TA Thorne, the basis for the quantum of the defendants’ claim (affirmed and filed 19 March 2024) which totals 182 pages. In all the circumstances and having regard to the amount claimed by the defendants on an indemnity basis, I conclude that because of the nature and complexity of the proceedings that this is an appropriate case for an order that the costs of proceedings be assessed by a cost assessor.

DISPOSITION

  1. [71]
    I order:

3)That the plaintiffs’ pay the defendants cost of and incidental to the proceedings on an indemnity basis.

4)That the costs of the proceedings be assessed by a cost assessor upon the basis of a claim for more than $50,000.

Magistrate J N L Pinder

Dated – 02/08/24

Footnotes

[1] Minister for Immigration & Ethnic Affairs (Cth); Ex Parte Lai Qin [1997] HCA 6; 186 CLR 622.

[2] Rule 702 UCPR.

[3] [2012] QCA 233.

[4] See Reasons 27/02/2024 – paragraph 16.

[5] See Reasons 27/02/2024 – paragraph 22.

[6] See Reasons 27/02/2024 – paragraph 51.

[7] See Reasons 27/02/2024 – paragraph 54.

[8] See Reasons 27/02/2024 – paragraph 58.

[9] See Reasons 27/02/2024 – paragraphs 60-62.

[10] See Reasons 27/02/2024 – paragraphs 64-66.

[11] See Reasons 27/02/2024 – paragraphs 45-50.

[12] Affidavit T. Thorne 19/03/2024 – paragraph 5.

[13] Affidavit T. Thorne 19/03/2024 – paragraph 5.

[14] Affidavit T. Thorne 19/03/2024 – see Ex TAT-3, page 4 & 5.

[15] Affidavit T. Thorne 19/03/2024 – paragraph 6.

[16] Affidavit T. Thorne 19/03/2024 – paragraph 8.

[17] Affidavit T. Thorne 19/03/2024 – paragraph 10.

[18] Affidavit T. Thorne 19/03/2024 – paragraph 13.

[19] Affidavit T. Thorne 19/03/2024 – paragraph 16.

[20] Affidavit T. Thorne 19/03/2024 – paragraph 4.

[21] [2012] QCA 233

[22] Rule 683(2) UCPR.

Close

Editorial Notes

  • Published Case Name:

    Pathak & Anor v Anna Wilshire as trustee for the Jackson Family Trust & Anor

  • Shortened Case Name:

    Pathak v Anna Wilshire as trustee for the Jackson Family Trust

  • MNC:

    [2024] QMC 14

  • Court:

    QMC

  • Judge(s):

    Pinder

  • Date:

    02 Aug 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 F.C.R 225
2 citations
Jump To
Cite 1 - (1993) 46 F.C.R 225
Cite 2 - (1993) 46 F.C.R 225
House v The King (1936) 55 CLR 499
1 citation
Jump To
Cite 1 - (1936) 55 CLR 499
J & D Rigging Pty Ltd v Agripower Australia Limited [2014] QCA 23
2 citations
Jump To
Cite 1 - [2014] QCA 23
Cite 2 - [2014] QCA 23
Minister for Immigration and Ethnic Affairs (Cth) Ex parte v Lai Qin [1997] HCA 6
2 citations
Jump To
Cite 1 - [1997] HCA 6
Cite 2 - [1997] HCA 6
Peter Carter Transport Pty Ltd v Swansway No. 2 Pty Ltd [2021] QDC 109
2 citations
Jump To
Cite 1 - [2021] QDC 109
Cite 2 - [2021] QDC 109
Schache v GP No 1 Pty Ltd [2012] QCA 233
3 citations
Jump To
Cite 1 - [2012] QCA 233
Cite 2 - [2012] QCA 233
Cite 3 - [2012] QCA 233
Springfield City Group Pty Ltd v Pipe Networks Pty Ltd (No. 2) [2022] QSC 299
2 citations
Jump To
Cite 1 - [2022] QSC 299
Cite 2 - [2022] QSC 299

Cases Citing

Case NameFull CitationFrequency
Peak Physique Franchisor Group Pty Ltd v Gravity Rebellion Pty Ltd [2024] QMC 221 citation
1

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