Collins v Marinovich & Ors

This case considered a review of a cost assessor’s decision pursuant to r 742 UCPR. Justice Muir found that the assessor had been “manifestly wrong” in the approach taken to the assessment. On their proper construction, the costs orders imposed joint and several liability for some costs – but this was not reflected in the approach taken by the assessor. The decision was set aside and the assessment remitted for re-determination on the proper basis.

Muir J

9 August 2023

Background

After a trial in which the applicant was successful, Ryan J made costs orders which included the following:

“The Second Respondent is to pay the Applicant’s costs of the proceeding. The First Respondent is to pay the Applicant’s costs of paragraph one of the Applicant’s originating application filed 12 June 2019”. [4].

It was not in issue that the relief sought in paragraph one of the originating application had been the main issue in the proceeding. [5].

A costs assessment was subsequently undertaken by an assessor, who approached the assessment on the basis that the costs order should not be constructed as meaning that each of the respondent parties was jointly and severally liable for the costs of paragraph one. [19]. The costs certificate issued assessed costs payable by the first respondent but made no assessment in respect of costs payable by the second respondent. [20].

The applicant contended, and Muir J accepted, that the cost assessor’s decision had been “manifestly wrong”. [7].

Why the costs assessment decision was set aside

UCPR r 742 allows a party dissatisfied with a costs assessment decision to apply to the court to have the decision reviewed. [9]. Justice Muir noted that the circumstances in which the court will interfere are confined to when the discretion has not been exercised at all, has been exercised in a way that is “manifestly wrong”, or has involved an “obvious mistake”. [12].

In determining whether that threshold had been satisfied, Muir J said that the initial task was to construe the objective meaning of the words used in the costs order. [30]. In this regard:

“On an ordinary and natural reading it makes two unqualified costs orders against two different parties; one against the second respondent for the applicant’s costs of the proceeding and one against the first respondents for the applicant’s costs of paragraph one of the originating application”. [31].

Further, her Honour noted that, as a general rule, where a court orders costs be paid by two or more persons, the costs liability is joint and several (citing Glenwood Homes Pty Ltd v Eberhard [2009] 1 Qd R 127, amongst other cases). [33]. In this case, there was nothing in the terms of the costs order which suggested that liability was not intended to be joint and several. [34]. Accordingly, her Honour found that the liability for the costs of paragraph one of the originating application must be treated as joint and several. [35].

The costs assessor, in failing to construe the costs order in this way, had fallen into an “error of principle”, and this mistake “infected his thinking and reasoning throughout the assessment”, in various ways which her Honour stepped through. [37]–[43].

In the result, the Court set aside the decisions made by the costs assessment, and remitted the assessment back to the same assessor to be conducted on the correct basis (namely, that there is joint and several liability for the costs of paragraph one). [49].

W Isdale of Counsel