Amos v Monsour Pty Ltd - [2009] QCA 65

SUPREME COURT OF QUEENSLAND

CITATION:

Amos v Monsour P/L & Ors [2009] QCA 65

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)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

24 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2009

JUDGES:

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

ORDERS:

1.   The application for leave to appeal is refused.

2.   The applicant should pay the respondents’ costs of and incidental to the application for leave to appeal in an amount to be fixed by the Court.

3.   Unless the parties have earlier notified the Registrar of an agreed amount for costs:

(a)     Within 10 days the respondents file and serve upon the applicant written submissions, verified by affidavit where practicable, directed to establishing that the amount of costs claimed by the respondents is a realistic estimate of the amount of costs which would be assessed on the standard basis.

(b)     Within seven days thereafter, the applicant file and serve upon the respondents any submissions the applicant wishes to make concerning the amount of costs to be fixed by the Court, verified by affidavit where practicable.

(c)     Except with the prior leave of the Registrar, each party’s submissions are to be in double-spacing and are not to exceed three A4 pages in length rendered in type no smaller than 1.8mm (10 point) and each party’s affidavits (including exhibits) are to be in double-spacing and are not to exceed 10 A4 pages in length rendered in type no smaller than 1.8mm (10 point).

(d)     Except with the prior leave of the Registrar, neither party is authorised to make submissions in response or in reply.

CATCHWORDS:

APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – OTHER MATTERS – COSTS – where applicant ordered to pay costs on the indemnity basis for a failed action in the District Court – where the primary judge assessed costs at $39,784 – where the applicant sought leave to appeal costs assessment – whether the primary judge erred in failing to direct himself that the assessment of costs on the indemnity basis equated to an assessment on a solicitor and client basis rather than providing for a complete indemnity for costs – whether the applicant was denied procedural fairness through refusal of his request to inspect the respondent’s solicitor’s file – whether leave to appeal against the costs assessment should be granted under s 118(3) of the District Court of Queensland Act 1967 (Qld)

District Court of Queensland Act 1967 (Qld), s 118(3)
Supreme Court of Queensland Act 1991 (Qld), s 133
Supreme Court Rules 1970 (NSW), r 6(2)
Uniform Civil Procedure Rules 1999 (Qld), r 687(2)(c),…

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: [2009] QCA 65
Decision Date: 24 March 2009

CaseChat Overview and Summary

The applicant, Amos, sought leave to appeal against the costs assessment made by the District Court following his failed action against Monsour Pty Ltd. The primary judge had assessed the costs at $39,784, and Amos argued that the primary judge erred in not directing himself that the assessment of costs on an indemnity basis equated to an assessment on a solicitor and client basis, rather than providing complete indemnity for costs. Amos also contended that he was denied procedural fairness when his request to inspect the respondent’s solicitor’s file was refused. The court was required to determine whether the primary judge erred in his assessment of costs and whether Amos was denied procedural fairness.

The court found that the primary judge did not err in his assessment of costs on an indemnity basis. The court held that the assessment of costs on an indemnity basis did not equate to an assessment on a solicitor and client basis and that the primary judge's assessment was reasonable and within his discretion. The court also found that Amos was not denied procedural fairness when his request to inspect the respondent’s solicitor’s file was refused. The court held that the primary judge had exercised his discretion appropriately and that Amos had not demonstrated any error in the primary judge’s refusal to allow inspection of the file.

The application for leave to appeal was refused. The court held that the primary judge's assessment of costs was reasonable and that Amos had not demonstrated any error in the primary judge's assessment. The court also held that Amos was not denied procedural fairness when his request to inspect the respondent’s solicitor’s file was refused. The applicant was ordered to pay the respondents’ costs of and incidental to the application for leave to appeal in an amount to be fixed by the Court. The respondents were directed to file and serve upon the applicant written submissions, verified by affidavit where practicable, directed to establishing that the amount of costs claimed by the respondents was a realistic estimate of the amount of costs which would be assessed on the standard basis. The applicant was then to file and serve upon the respondents any submissions the applicant wished to make concerning the amount of costs to be fixed by the Court, verified by affidavit where practicable.

Orders

Orders of the court

1. The application for leave to appeal is refused.

2. The applicant should pay the respondents’ costs of and incidental to the application for leave to appeal in an amount to be fixed by the Court.

3. Unless the parties have earlier notified the Registrar of an agreed amount for costs:

(a) Within 10 days the respondents file and serve upon the applicant written submissions, verified by affidavit where practicable, directed to establishing that the amount of costs claimed by the respondents is a realistic estimate of the amount of costs which would be assessed on the standard basis.

(b) Within seven days thereafter, the applicant file and serve upon the respondents any submissions the applicant wishes to make concerning the amount of costs to be fixed by the Court, verified by affidavit where practicable.

(c) Except with the prior leave of the Registrar, each party’s submissions are to be in double-spacing and are not to exceed three A4 pages in length rendered in type no smaller than 1.8mm (10 point) and each party’s affidavits (including exhibits) are to be in double-spacing and are not to exceed 10 A4 pages in length rendered in type no smaller than 1.8mm (10 point).

(d) Except with the prior leave of the Registrar, neither party is authorised to make submissions in response or in reply.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Amos v Monsour P/L & Ors [2009] QCA 65
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)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	24 March 2009
DELIVERED AT:	Brisbane
HEARING DATE:	9 March 2009
JUDGES:	McMurdo P, Fraser JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal is refused. 2. The applicant should pay the respondents’ costs of and incidental to the application for leave to appeal in an amount to be fixed by the Court. 3. Unless the parties have earlier notified the Registrar of an agreed amount for costs: (a) Within 10 days the respondents file and serve upon the applicant written submissions, verified by affidavit where practicable, directed to establishing that the amount of costs claimed by the respondents is a realistic estimate of the amount of costs which would be assessed on the standard basis. (b) Within seven days thereafter, the applicant file and serve upon the respondents any submissions the applicant wishes to make concerning the amount of costs to be fixed by the Court, verified by affidavit where practicable. (c) Except with the prior leave of the Registrar, each party’s submissions are to be in double-spacing and are not to exceed three A4 pages in length rendered in type no smaller than 1.8mm (10 point) and each party’s affidavits (including exhibits) are to be in double-spacing and are not to exceed 10 A4 pages in length rendered in type no smaller than 1.8mm (10 point). (d) Except with the prior leave of the Registrar, neither party is authorised to make submissions in response or in reply.
CATCHWORDS:	APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – OTHER MATTERS – COSTS – where applicant ordered to pay costs on the indemnity basis for a failed action in the District Court – where the primary judge assessed costs at $39,784 – where the applicant sought leave to appeal costs assessment – whether the primary judge erred in failing to direct himself that the assessment of costs on the indemnity basis equated to an assessment on a solicitor and client basis rather than providing for a complete indemnity for costs – whether the applicant was denied procedural fairness through refusal of his request to inspect the respondent’s solicitor’s file – whether leave to appeal against the costs assessment should be granted under s 118(3) of the District Court of Queensland Act 1967 (Qld) District Court of Queensland Act 1967 (Qld), s 118(3) Supreme Court of Queensland Act 1991 (Qld), s 133 Supreme Court Rules 1970 (NSW), r 6(2) Uniform Civil Procedure Rules 1999 (Qld), r 687(2)(c),…