Howard v Kassim[2025] QSC 50

SUPREME COURT OF QUEENSLAND

1. [1]
   On 19 February 2025, I dismissed the plaintiff’s application for summary judgment and made an order that the plaintiff pay the defendant’s costs of the plaintiff’s application.  I made further directions that the defendant file and serve an affidavit in support of fixing the costs, accompanied by submissions of not more than two pages.  The plaintiff was ordered to file and serve submissions in reply, regarding the quantum of the defendant’s costs.
2. [2]
   The defendant filed and served an affidavit and submissions in accordance with the directions.  The plaintiff did not comply with the directions. 
3. [3]
   The power to fix costs arises under r 687 of the Uniform Civil Procedures Rules 1999 (Qld).  Generally, the approach to fixing costs must be logical, fair and reasonable,^[1] and must be based on sufficient evidence to arrive at an appropriate sum. The purpose of making such an order is to save parties the time, trouble, delay, expense and aggravation of protracted litigation arising out of the taxation.^[2]
4. [4]
   In the circumstances, the issues to be determined are firstly, whether the court should fix the costs to be paid pursuant to the costs order.  If the answer is yes, the second step is to determine the amount of those fixed costs.  If the court does not exercise the discretion to order fixed costs, then the issue is, what order should be made on the application.^[3]
5. [5]
   For the reasons which I set out below, it is appropriate for the court to fix costs in the circumstances of this case and to proceed with the second step of determining those costs. 
6. [6]
   As to the first question, being whether it is appropriate to fix costs I refer to the following matters.
7. [7]
   The application for summary judgment was doomed to fail.  I delivered an ex tempore decision on the day of the hearing, 19 February 2025, and currently that ex tempore decision remains unpublished.  On the basis that it might remain so, I briefly summarise the discretionary considerations which I took into account for the purpose of satisfying myself that it is appropriate to fix costs.
8. [8]
   The deceased died on 24 June 2024.  She left two wills; one prepared by the Public Trustee on 2 October 2020 and another, her last will, prepared by a solicitor and dated 10 March 2023.  The plaintiff is not named in either of those wills.  The defendant is named executor of the last will, as well as a beneficiary.
9. [9]
   When the plaintiff commenced a proceeding on 22 October 2024 seeking orders that the last will be deemed invalid, the defendant sought to strike out the plaintiff’s pleading without liberty to re-plead.  The pleading was struck out, but the plaintiff was given leave to re-plead and she did so on 16 December 2024.
10. [10]
    The amended statement of claim is a very lengthy document; it is 29 pages in length and contains some 316 separate paragraphs as well as further paragraphs for the relief which is sought.  The document, prepared without the benefit of legal advice, is prolix, difficult to follow and contains a mixture of what appears to be both submissions and evidence.  It is littered with matters which simply could not be construed as material facts necessary to establish the claim.
11. [11]
    Despite the most unsatisfactory nature of the amended statement of claim, the defendant filed a defence to it.  It is a succinct document of two pages, which attempts to respond to the statement of claim in the most efficient way it can.  In short, the defence identifies those parts of the pleadings that plead evidence rather than material facts, and responds appropriately to the allegations in the only way which could sensibly be done with such a difficult statement of claim.  There is nothing in the defence which would lead to the conclusion that, firstly, the defendant has no prospect of successfully defending all or part of the claim, and secondly, that there is no need for a trial of the claim or part of the claim.  To the contrary, the defence points to the unlikelihood of the plaintiff’s own prospect of success, although, I stress that it remains possible that, if properly pleaded, there might indeed be an arguable claim.  I do not intend to say anything about the merits of the plaintiff’s proceeding other than that the way in which it is currently  drafted meant that the summary judgment application was always hopeless because there were no material facts upon which the court could safely conclude that the defendant had no prospect of defending the claim or that there was no need for a trial, both of which are required under r 292 of the UCPR.
12. [12]
    In the face of such an inefficient pleading, it is appropriate to fix costs to minimise areas of dispute going forward.
13. [13]
    The next question to determine is the amount of those fixed costs.
14. [14]
    The total cost sought by the defendant is $9,391.82 inclusive of counsel’s fees of $4,950.00.
15. [15]
    The material filed in support of the costs includes a detailed schedule prepared by the solicitors for the defendant identifying each of the items and the charge for them.  Each has been assessed, and claimed, in accordance with the relevant scale item number on the Supreme Court scale. Although the solicitor for the defendant has also particularised the costs in accordance with the costs agreement reached with the defendant, the amount claimed is not claimed in accordance with the costs agreement, but is claimed in accordance with the Supreme Court scale.  The evidence is provided for comparison purposes only. The Supreme Court scale is appropriate for an assessment of standard costs such as this one.
16. [16]
    The only aspect of the costs assessment which strikes me as being irrecoverable, are those costs pertaining to the defendant’s expectation that it would receive submissions in reply from the plaintiff, which would then be sent to counsel for review. Those costs were not actually incurred because the plaintiff never filed any submissions in relation to costs.  The total of those costs amount to $103.30 and I would therefore discount the amount claimed by that sum to reflect the fact that those costs were not incurred.
17. [17]
    It is also appropriate that I consider the fairness and reasonableness of the amount which the defendant seeks in the context of the fact that the defendant gave the plaintiff notice that it considered her prospects of obtaining summary judgment were poor, and offered to let her discontinue the application without an adverse order for costs against her.  That letter essayed the reasons why the application was hopeless.  The plaintiff was further directed to the benefit that she would receive from obtaining legal advice.  She did not discontinue her application, nor does it seem that she sought advice.  In my view she was given ample notice of the hopelessness of her claim.  In the circumstances, it is fair and reasonable that the defendant’s costs be fixed, if the sum settled upon is appropriate, as I find it to be in this case.
18. [18]
    In the circumstances, having ordered that the plaintiff pay the defendants costs, I order that those costs be fixed in the sum of $9,288.52, being the amount as claimed less the deduction of $103.30 which I reference at paragraph [16] above.