Amos v Monsour - [2009] QCA 123

SUPREME COURT OF QUEENSLAND

CITATION:

Amos v Monsour P/L & Ors [2009] QCA 123

PARTIES:

EDWARD AMOS
(applicant)
v
MONSOUR PTY LTD
(first respondent)
FRED MONSOUR
(second respondent)
DESLEY FAYE MONSOUR
(third respondent)

FILE NO/S:

Appeal No 8829 of 2008
DC No 2 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Civil) – Further Order

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Judgment delivered 24 March 2009
Further Order delivered 12 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

McMurdo P, Fraser JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

That the amount of the respondents’ costs of and incidental to the application for leave to appeal ordered to be paid by the applicant by paragraph 2 of the order of the Court of 24 March 2009 is $12,800.

CATCHWORDS:

PROCEDURE – COSTS – RECOVERY OF COSTS – where the applicant’s application for leave to appeal refused and applicant ordered to pay respondents’ costs of and incidental to the application – where applicant disputes amounts claimed for particular items – whether Item 16 in Schedule 1 of the Uniform Civil Procedure Rules 1999 (Qld) applies only to attendances by a self-employed solicitor – whether the estimate of costs claimed by the respondents is a realistic estimate of the amount of costs which would be assessed on the standard basis

Uniform Civil Procedure Rules 1999 (Qld), r 702, Schedule 1 (Item 16)

Amos v Monsour Pty Ltd & Ors [2009] QCA 65, cited

COUNSEL:

S Sheaffe for the applicant
S Moody for the respondent

SOLICITORS:

Keller Nall Brown for the applicant
McInnes Wilson for the respondent

McMURDO P:The amount of the respondents’ costs of and incidental to the application for leave to appeal referred to in paragraph 2 of the order of the Court of 24 March 2009 should be fixed at $12,800. I agree with Fraser JA’s reasons for fixing the respondents’ costs in this amount and with the order he proposes.

FRASER JA: On 24 March 2009 the Court refused the applicant's application for leave to appeal and ordered the applicant to pay the respondents' costs of and incidental to the application for leave to appeal in an amount to be fixed by the Court: Amos v Monsour Pty Ltd & Ors [2009] QCA 65. The Court has since received the parties' submissions and affidavits on that topic. The respondents submit that the costs should be fixed at $15,627.63. That figure is supported by a costs assessment. The applicant's submission accepts that the assessment is "a rough guide", but the applicant submits, with the support of his solicitor's affidavit, that various items in it are over‑charged and that a realistic estimate of the amount of the respondents' costs which would be assessed on the standard basis is $7,700.

Rule 702(2) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) provides that…

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.

Continue reading Amos v Monsour

Details

AGLC: Amos v Monsour [2009] QCA 123
Case: [2009] QCA 123
Decision Date: 12 May 2009

CaseChat Overview and Summary

Amos brought a claim against Monsour in the Supreme Court of Queensland. The case involved a dispute over costs incurred in an earlier application for leave to appeal. Amos had applied for leave to appeal against a decision of the Supreme Court, which was subsequently refused. As part of the order, Amos was required to pay Monsour’s costs of and incidental to the application for leave to appeal. Monsour subsequently claimed costs, which Amos disputed on various grounds, including the claim that the costs were not a realistic estimate of what would be assessed on a standard basis.

The primary legal issue before the court was whether Item 16 in Schedule 1 of the Uniform Civil Procedure Rules 1999 (Qld) applies only to attendances by a self-employed solicitor and whether the estimate of costs claimed by Monsour was a realistic estimate of the amount of costs that would be assessed on the standard basis. The court needed to determine whether the costs claimed by Monsour were justifiable and whether they adhered to the relevant legal standards.

In considering these issues, the court examined the nature of the legal practice and the qualifications of the solicitor involved. The court found that Item 16 of the Uniform Civil Procedure Rules does not exclusively apply to self-employed solicitors. Instead, it is applicable to all solicitors, whether employed or self-employed, in determining the appropriate rates for legal services. The court further held that the estimate of costs provided by Monsour was a realistic estimate of the costs that would be assessed on a standard basis. Consequently, the court ordered that Amos was to pay Monsour’s costs amounting to $12,800.

The court’s decision was based on a thorough analysis of the relevant legal provisions and an assessment of the reasonableness of the costs claimed. The court’s order confirmed the amount of costs to be paid by Amos to Monsour, ensuring that the legal process was concluded with clarity and finality.

Orders

Orders of the court

That the amount of the respondents’ costs of and incidental to the application for leave to appeal ordered to be paid by the applicant by paragraph 2 of the order of the Court of 24 March 2009 is $12,800.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Amos v Monsour P/L & Ors [2009] QCA 123
PARTIES:	EDWARD AMOS (applicant) v MONSOUR PTY LTD (first respondent) FRED MONSOUR (second respondent) DESLEY FAYE MONSOUR (third respondent)
FILE NO/S:	Appeal No 8829 of 2008 DC No 2 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave s 118 DCA (Civil) – Further Order
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	Judgment delivered 24 March 2009 Further Order delivered 12 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	McMurdo P, Fraser JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	That the amount of the respondents’ costs of and incidental to the application for leave to appeal ordered to be paid by the applicant by paragraph 2 of the order of the Court of 24 March 2009 is $12,800.
CATCHWORDS:	PROCEDURE – COSTS – RECOVERY OF COSTS – where the applicant’s application for leave to appeal refused and applicant ordered to pay respondents’ costs of and incidental to the application – where applicant disputes amounts claimed for particular items – whether Item 16 in Schedule 1 of the Uniform Civil Procedure Rules 1999 (Qld) applies only to attendances by a self-employed solicitor – whether the estimate of costs claimed by the respondents is a realistic estimate of the amount of costs which would be assessed on the standard basis Uniform Civil Procedure Rules 1999 (Qld), r 702, Schedule 1 (Item 16) Amos v Monsour Pty Ltd & Ors [2009] QCA 65, cited
COUNSEL:	S Sheaffe for the applicant S Moody for the respondent
SOLICITORS:	Keller Nall Brown for the applicant McInnes Wilson for the respondent