Amos v. Monsour Pty Ltd & Ors

DISTRICT COURT OF QUEENSLAND

CITATION:

Amos v Monsour Pty Ltd & Ors [2008] QDC 194

PARTIES:

Edward Amos

Plaintiff / Respondent

v

Monsour Pty Ltd

First Defendant / Applicant

and

Fred Monsour

Second Defendant / Applicant

and

Desley Faye Monsour

Third Defendant / Applicant

FILE NO:

2 of 2008

PROCEEDING:

Assessment of indemnity costs

DELIVERED ON:

12 August 2008

DELIVERED AT:

Brisbane

HEARING DATES:

31 July, 01 August and 05 August 2008

JUDGE:

Judge Brabazon QC

ORDER:

(1)     Indemnity costs of these proceedings be fixed at $39,784.00

(2)     No order with respect to the costs of this assessment

CATCHWORDS:

PRACTICE AND PROCEDURE – COSTS – assessment of indemnity costs – where plaintiff ordered to pay defendants’ costs – short form assessment by costs assessor – two counsel – whether first defendant “carrying on an enterprise” – whether first defendant can claim input tax credits on GST paid

LEGISLATION CITED:

Uniform Civil Procedure Rules 1999 (Qld)

CASES CITED:

Amos v Monsour Legal Costs P/L [2007] QCA 235

ASIC v Atlantic 3 Financial (Aust) Pty Ltd & Ors [2008] QSC 9

ChongHerr Investments Ltd v Titan Sandstone P/L [2007] QCA 278

Hennessy Glass and Aluminium Pty Ltd v Watpac Australia Pty Ltd [2007] QDC 057

Warren v Body Corporate for Buon Vista CTS 14325 [2007] QCA 160

COUNSEL:

Mr D R Tucker (solicitor) for the Plaintiff

Ms S L Moody for the First, Second and Third Defendants

SOLICITORS:

Tucker and Cowen Solicitors for the Plaintiff

McInnes Wilson Lawyers for the First, Second and Third Defendants

1. Years ago Mr Amos sued the National Australia Bank.  He settled his claim on the basis that he pay the bank’s costs to be assessed by Mr Monsour.  (It is convenient to refer to the three defendants that way.  Mr and Mrs Monsour are the directors of Monsour Pty Ltd which carried on the business of assessing costs.  Before April 2005, the company was called Monsour Legal Costs Pty Ltd).  Mr Amos was unhappy with the assessment.  He sued Mr Monsour in the Magistrates Court.  After a long day’s trial, he lost and had to pay indemnity costs.  Mr Amos appealed.  Judge Nase heard the appeal and reduced the costs from $49,996.00 to $45,506.00.  Mr Amos had to pay the costs.

1. Mr Amos appealed against Judge Nase’s judgment, to the Court of Appeal.  He lost and had to pay costs.  He still had to pay the costs of $45,506.00, fixed by Judge Nase. 

1. Mr Amos then claimed in this court that Judge Nase’s decision was procured by counsel’s fraud on behalf of Mr Monsour.  On 18 and 20 June this year I was the Judge who heard an application to summarily dismiss that claim.  Mr Amos was ordered to pay indemnity costs, as he had made allegations which ought never to have been made, and unduly prolonged the case by groundless contentions.

1. It was ordered that Mr Monsour file and serve a short form costs assessment by an approved costs assessor, together with any submissions.  Mr Amos…