Adelaide Bank Limited v Teni - [2005] QSC 40

[2005] QSC 040

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

BYRNE J

No 8722 of 2004

ADELAIDE BANK LIMITED
(ACN 061 461 550)

Plaintiff

and

TENISIO TENI

and

MARIA FERISITA TENI

First Enforcement Debtor

Second Enforcement Debtor

BRISBANE

..DATE 11/02/2005

ORDER

HIS HONOUR: This application is by a mortgagee of real property: the mortgagee sought a default judgment for recovery of possession of land following the mortgagor's default.

Rule 286 provides that where a claim is made for judgment in default for recovery of possession of land only, the plaintiff may file a request for judgment "and for the costs prescribed". That rule is contained in chapter 9, part 1 of the Uniform Civil Procedure Rules.

By rule 695:

"If a default judgment is given with costs under chapter 9, part 1, the registrar must set the costs in accordance with the prescribed scale."

Schedule 1 contains the scale of costs applicable to proceedings in the Supreme Court. Under the heading "Prescribed Costs" in schedule 1 are four items. They include:

"20: Costs on issuing a claim...
(a) by an individual" -

And then an amount is prescribed:

"(b) Claim by an entity other than an individual" -

Where a higher amount is prescribed, and:

"21: Costs of obtaining judgment in default of appearance" -

Where again a figure is prescribed.
The plaintiff applied for default judgment. The Registrar allowed as the costs the costs mentioned in items 20 and 21. The applicant contends that the Registrar ought additionally to have allowed the amount contemplated by item 18. Under the heading "Disbursements", item 18 provides for:

"Court fees and other fees and payments to the extent that they have been reasonably incurred and paid ..."

Relevantly, item 18 relates to Court filing fees.

The Registrar was correct in not including an item under 18, for the "prescribed costs" proceed upon the basis that item 20 includes a component for filing fees.

The apparent intention of the items under "prescribed costs" is to specify the sums which will be allowed without the necessity to prepare a bill that complies with the form anticipated by the scale of costs, making claims for particular items such as drawing, engrossing, copying and service. Item 18, on the other hand, is one of several components of an ordinary bill to be prepared by reference to claims of a kind envisaged by items 1 to 19 in schedule 1.

The result is in some respects odd. On this approach, more might be allowed under schedule 2 - which concerns District Court proceedings - in respect of judgments by default. That is because not only is there provision in Schedule 2 for the costs of judgment by default in an amount exceeding $600 in broadly comparable circumstances but also the Registrar may include other allowances and - see 88(c) - "All necessary out of pocket expenses."

As it happens, those who have prescribed the costs to be awarded appear to have proceeded upon the assumption that item 20…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] QSC 40
Decision Date: 11/02/2005

CaseChat Overview and Summary

The Supreme Court of Queensland heard an application by the Adelaide Bank Limited, a plaintiff, against Tenisio Teni and Maria Ferisita Teni, who were the enforcement debtors. The bank sought a default judgment for the recovery of possession of land due to the mortgagor's default. The application was governed by Rule 286 of the Uniform Civil Procedure Rules, which allows a plaintiff to request judgment and prescribed costs if the claim is for the recovery of possession of land only. The Registrar allowed the costs as per items 20 and 21 of the prescribed costs in Schedule 1 of the Uniform Civil Procedure Rules, but the plaintiff argued that the amount under item 18, which includes court fees and other payments, should also be allowed.

The legal issue before the court was whether the Registrar should have included the costs under item 18 of the prescribed costs, which pertains to court fees and other fees and payments incurred. The court examined whether the prescribed costs under items 20 and 21 already included the filing fees and other relevant costs. It was noted that the prescribed costs were structured to cover both professional costs and filing fees, thereby eliminating the need for additional claims under item 18. The court concluded that the Registrar was correct in not including an item under 18, as the prescribed costs were intended to cover all necessary expenses without the need for a detailed bill of costs. The progressive increases in prescribed costs mirrored the changes in filing fees, further supporting the conclusion that the prescribed costs already encompassed the filing fees. The court also highlighted that any issues with the current cost structure should be addressed with the Rules Committee and the government.

The court ultimately decided in favor of the Registrar, affirming that the prescribed costs under items 20 and 21 were sufficient and did not require the inclusion of item 18 costs. The plaintiff's application for additional costs under item 18 was dismissed. The court's decision was based on the understanding that the prescribed costs were designed to cover all necessary expenses, including filing fees, and thus additional claims under item 18 were not warranted. The court emphasized that any changes to the cost structure should be pursued through the appropriate channels, such as the Rules Committee and the government.

Orders