Bellino v Douglas (No. 2) - [2016] QDC 262

DISTRICT COURT OF QUEENSLAND

CITATION:

Bellino v Douglas & Anor (No. 2) [2016] QDC 262

PARTIES:

ANTONIO BELLINO TRADING AS BELLINO’S TEA HOUSE AND RAINFOREST RESTAURANT

(plaintiff)

v

HUGH WILLIAM DOUGLAS

(defendant)

and

LINDSAY TERRENCE LAWRENCE TRADING LAWRENCE & ASSOCIATES SOLICITORS

(third party)

FILE NO/S:

1609/13

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

14 October 2016

DELIVERED AT:

Townsville

HEARING DATE:

Submissions on the papers
Plaintiff’s submissions dated 11 October 2016
Defendant’s submissions dated 11 October 2016

JUDGE:

Smith DCJA

ORDER:

I order that the costs of and incidental to the application be costs in the proceeding.

CATCHWORDS:

COSTS- whether costs should be paid by the plaintiff or should be costs in the proceedings

Uniform Civil Procedure Rules 1999 (Q) r 681

Bellino v Douglas & Anor [2016] QDC 251

COUNSEL:

Mr C Upton for the plaintiff

Mr L Jurth for the defendant

Solicitors for the third party

SOLICITORS:

PPCS Lawyers for the plaintiff

Londy Lawyers for the defendant

Barry & Nilsson for the third party

Introduction

This is the costs decision consequent on the decision given in Bellino v Douglas & Anor.[1] In the primary decision I made orders for directions as to the conduct of the proceedings.
[1][2016] QDC 251.

Plaintiff’s submissions

The plaintiff submits that the costs of and incidental to the application heard on 30 September 2016 should be costs in the proceeding because the court found the proceeding had a lengthy history, the court made directions as to the future conduct of this matter and it cannot be said that the application was misconceived; the directions were in the ambit of the application filed in the court and it was in the spirit of the rules of the interests of justice to allow the case to proceed without directions. It is submitted the defendant was primarily responsible for the delay in this case. Despite knowing that the third party was bankrupt since February 2014 the defendant first indicated to the plaintiff it would need to file an application regarding this on 8 February 2016. The application was only filed after service of the request for trial date. It was reasonable for the plaintiff to assume the third party would not defend the proceedings given it had not filed a defence since November 2014. The third party filed its defence some 36 months after the third party proceeding was commenced and four days before the hearing of the application. It is submitted the plaintiff acted reasonably. He reconsidered his position and acted to negotiate directions with the defendant and third party to progress the matter. In contrast, the defendant’s position was unreasonable in that he refused to participate in any such negotiations and relevant material is relied upon.[2]
[2]See para 4(i)-(v) of the plaintiff’s submissions.

It is submitted the defendant’s unreasonableness has been characteristic of its approach to these proceedings. In the circumstances, bearing in mind the findings of the court in the primary decision, the costs of and…

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: [2016] QDC 262
Decision Date: 14 October 2016

CaseChat Overview and Summary

The proceedings in the District Court of Queensland involved a dispute between Bellino, the plaintiff, and Douglas, the defendant. The matter at hand concerned a claim for costs related to an application that Bellino had made, which the court was required to adjudicate. The court had to determine whether the costs incurred by Bellino in making the application should be borne by him or should be treated as costs in the proceedings. The Uniform Civil Procedure Rules 1999 (Qld) provided the framework for the court's decision, particularly rule 681 which governs costs in proceedings.

The central legal issue before the court was whether the costs incurred by Bellino in making the application should be borne by him personally or should be treated as part of the overall costs in the proceedings. This issue required the court to interpret the relevant provisions of the Uniform Civil Procedure Rules and apply them to the specific circumstances of the case. The court had to consider whether the application was significant enough to warrant that the costs should be costs in the proceedings rather than costs borne by the applicant.

The court, in reaching its decision, carefully examined the nature and significance of the application made by Bellino. The court found that the application was of a kind that warranted the costs being treated as costs in the proceedings rather than costs borne by the applicant. This decision was based on the importance of the application and the impact it had on the overall proceedings. The court concluded that treating the costs as costs in the proceedings was the appropriate course of action, given the circumstances.

Accordingly, the court ordered that the costs of and incidental to the application be costs in the proceeding. This outcome reflected the court's view that the application was significant and warranted the costs being treated as part of the overall costs in the proceedings. The decision provides guidance on the application of the Uniform Civil Procedure Rules in determining the allocation of costs in similar cases.

Orders

Orders of the court

I order that the costs of and incidental to the application be costs in the proceeding.

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:	Bellino v Douglas & Anor (No. 2) [2016] QDC 262
PARTIES:	ANTONIO BELLINO TRADING AS BELLINO’S TEA HOUSE AND RAINFOREST RESTAURANT (plaintiff) v HUGH WILLIAM DOUGLAS (defendant) and LINDSAY TERRENCE LAWRENCE TRADING LAWRENCE & ASSOCIATES SOLICITORS (third party)
FILE NO/S:	1609/13
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	14 October 2016
DELIVERED AT:	Townsville
HEARING DATE:	Submissions on the papers Plaintiff’s submissions dated 11 October 2016 Defendant’s submissions dated 11 October 2016
JUDGE:	Smith DCJA
ORDER:	I order that the costs of and incidental to the application be costs in the proceeding.
CATCHWORDS:	COSTS- whether costs should be paid by the plaintiff or should be costs in the proceedings Uniform Civil Procedure Rules 1999 (Q) r 681 Bellino v Douglas & Anor [2016] QDC 251
COUNSEL:	Mr C Upton for the plaintiff Mr L Jurth for the defendant Solicitors for the third party
SOLICITORS:	PPCS Lawyers for the plaintiff Londy Lawyers for the defendant Barry & Nilsson for the third party