Commissioner of State Revenue v Edward Amos (No 2)
[2025] QSC 89
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- Unreported Judgment
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- Commissioner of State Revenue v Edward Amos (No 2)[2025] QSC 89
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Commissioner of State Revenue v Edward Amos (No 2)[2025] QSC 89
Commissioner of State Revenue v Edward Amos (No 2)[2025] QSC 89
SUPREME COURT OF QUEENSLAND
| CITATION: | Commissioner of State Revenue v Edward Amos (No 2) [2025] QSC 89 |
| PARTIES: | COMMISSIONER OF STATE REVENUE (plaintiff) v AMOS, Edward (defendant) |
| FILE NO/S: | 4457/13 |
| DIVISION: | Trial Division |
| PROCEEDING: | Trial |
| ORIGINATING COURT: | Supreme Court at Brisbane |
| DELIVERED ON: | 2 May 2025 |
| DELIVERED AT: | Brisbane |
| HEARING DATE: | Plaintiff’s written submissions dated 15 April 2025 Defendant’s written submissions dated 22 April 2025 |
| JUDGE: | Smith J |
| ORDER: |
|
| CATCHWORDS: | CIVIL PROCEDURE – COSTS – General Rule: costs follow event – where the plaintiff is successful on all issues – whether no order as to costs should be made or whether alternatively costs ought to be made on the Magistrates Court scale. Magistrates Courts Act 1921 (Qld) s 4 Uniform Civil Procedure Rules (Qld) rr 5, 681, 799, 801 Commissioner of State Revenue v Amos [2025] QSC 76, cited Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, applied Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164, cited |
| COUNSEL: | Mr D de Jersey KC for the plaintiff Mr P Jeffery for the defendant |
| SOLICITORS: | Crown Solicitor for the plaintiff Beaudesert Legal (Qld) Pty Ltd for the defendant |
Introduction
- [1]This is the costs decision consequent to the decision I gave in Commissioner of State Revenue v Amos.[1] By that decision I made orders in the plaintiff’s favour on all three issues to be decided.
- [2]The plaintiff submits that the court should order that the defendant pay its costs on the standard basis.
- [3]
Discussion
- [4]Rule 681 of the Uniform Civil Procedure Rules 1999 (Qld) provides:
“(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.”
- [5]In Oshlack v Richmond River Council[4] it was noted at [44] that costs are not made to punish an unsuccessful party. McHugh J at [67] noted that the usual order as to costs embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party.
- [6]Although costs usually follow the event, there is a wide discretion in the court to make a different order provided the discretion is exercised judicially[5].
- [7]In this particular case the plaintiff was successful on all three issues. As I observed in the original judgment, a significant reason for the delay was explained in the affidavit of Jaime McIver.6 The plaintiff obtained an enforcement warrant for the seizure and sale of the properties owned by the defendant in the costs orders on 17 August 2017. In July 2018, the plaintiff became aware that the defendant alleged there were declarations of trust with respect to the Albion property and the Virginia property. As a result of the decision of Martin J (as his Honour then was) on 16 January 2018, the plaintiff did not proceed at that time with the sale of properties. Despite this the plaintiff has continued to renew the enforcement warrant. Letters of demand were later sent in July 2020.
- [8]It has taken some time to sort out the issues relating to the alleged declarations of trust.
- [9]Whilst there has been some delay the fact is the plaintiff has had a judgment in its favour and has continued to renew the enforcement warrant. In this regard, I note that under rule 799(1) an enforcement creditor may start the enforcement proceedings at any time within 6 years after the money order was made (in this case the six year periods expired on 22 May 2023 and 30 May 2023.) It may be seen that the trial was within two years of that expiry period.
- [10]Ultimately, despite the submissions by the defendant it is my respectful opinion the ordinary rule should apply i.e. that costs should follow the event and it is not appropriate to deny the plaintiff its costs because of delay.
- [11]I also consider that the costs should be on the Supreme Court scale on the standard basis. Although the amount payable is less than $150,000.00, the fact is that the original judgments were in the Supreme Court and the enforcement warrant was originally issued in the Supreme Court. There was good reason in my opinion to keep the matter in the Supreme Court bearing in mind the matter originated there. The fact is this court had to consider whether the declarations of trusts had been made and whether stamp duty had been paid on the declarations. These were, in my opinion, triable issues appropriately dealt with in the Supreme Court. Also the Magistrates Court had no power to order declaratory relief.[6]
- [12]Also in my view, rule 801 is aimed at the costs of enforcement. In this case not only was the court required to decide the issues relating to the alleged trusts but also whether the costs assessments should be set aside. It may be thought that these are not strictly speaking, costs of enforcement.
- [13]I do not accept the defence argument that costs should be on the Magistrates Court scale.
- [14]In the circumstances I propose to make the orders set out in the draft provided by the plaintiff’s counsel.
Orders
- I order the defendant pay the plaintiff’s costs of the amended application filed 16 May 2024 to be agreed or assessed on the standard basis.
- I order the defendant pay the plaintiff’s costs of the amended application filed 26 August 2024 to be agreed or assessed on the standard basis.
- I order the defendant pay the plaintiff’s costs of the amended application filed 19 November 2024 to be agreed or assessed on the standard basis.
Footnotes
[1][2025] QSC 76.
[2] Relying on Rule 5.
[3] Relying on Rule 801.
[4] [1998] HCA 11; (1998) 193 CLR 72.
[5]Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [25]. 6 Exhibit 7.
[6] In this regard the relief sought by paragraphs 1 and 2 was declaratory relief. This was granted. Section 4 of the Magistrates Courts Act 1921 (Qld) does not invest the Magistrates Court with the power to make declarations.