Bilic and Bilic v Nicholls (No 4) - [2014] QDC 109

DISTRICT COURT OF QUEENSLAND

CITATION:

Bilic & Bilic (No 4) v Nicholls & Ors [2014] QDC 109

PARTIES:

DRAGAN BILIC AND VESNA BILIC
(plaintiffs/respondents)

v

ANDREW NICHOLLS
(first defendant)

and

SHARYN LEE NICHOLLS
(second defendant)

and

JIMI LEE
(third defendant/applicant)

and

O’HARE LAW
(non-party)

FILE NO/S:

22/11

DIVISION:

Civil

PROCEEDING:

Costs orders

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

16 May, 2014

DELIVERED AT:

Beenleigh

HEARING DATE:

11 February 2014

JUDGE:

Dearden DCJ

ORDER:

1.   That O’Hare Law pay the plaintiffs/respondents’ costs on a standard basis of and in relation to those costs thrown away for the trial on 25 February 2013, insofar as the costs relate to the third defendant/applicant Jimi Lee.

2.   That the third defendant/applicant’s application to set aside the costs order made against the third defendant/applicant arising out of the application by the plaintiffs/respondents to dispense with the third defendant/applicant’s signature on the notice of trial on 21 August 2012 be granted.

3.   That the order for costs in favour of the plaintiffs/respondents against the third defendant/applicant made on 21 August 2012 be set aside, and in substitution, order that there be no order as to costs in respect of the application on 21 August 2012.

CATCHWORDS:

PROCEDURE – COSTS – District Court Procedure – Queensland – where previous solicitors for third defendant/applicant failed to seek leave to withdraw from record – whether previous solicitors for third defendant/applicant liable for costs for application to set aside default judgment

LEGISLATION:

High Court Rules O.7, r 7(1)

Uniform Civil Procedure Rules 1999 (Qld) rr 681, 690, 990, 991.

CASES:

Bilic & Bilic (No 2)v Nicholls & Ors [2013] QDC 298.

Commonwealth Bank of Australia v Davis [2004] 1 Qd R 363 534.

Gitsham, Edwards and Jensen v Suncorp Metway Insurance Ltd [2002] QCA 416.

Latoudis v Casey (1990) 170 CLR 534.

Macteldir Pty Ltd v Dimovski [2005] FCA 1528.

Plenty v Gladwin (1986) 67 ALR 26.

COUNSEL:

D A Hall for the third defendant/applicant

M J Byrne for the plaintiffs/respondents

S J Forrest for (non-party) O’Hare Law

SOLICITORS:

Robinson Locke Litigation Lawyers for the third defendant/applicant

Pearson & Associates Solicitors for the plaintifs/respondents

Barry & Nilsson Solicitors for O’Hare Law

Introduction

Inadvertently, in Bilic & Bilic (No 3) v Nicholls & Ors [2014] QDC 48, this court omitted to deal with two instanter applications for costs by the plaintiffs/respondents specifically identified on application filed 13 February 2014, confirming the oral applications made in a hearing on 11 February 2014.

The outstanding applications are as follows:

1. That Mr O’Hare, solicitor, and the third defendant, or either of them, pay the plaintiffs’ costs

… (b) costs thrown away for the trial, the judgment of which was set aside

2. That the third defendant’s application to set aside the costs order against the third defendant arising out of the successful application by the plaintiff to dispense with the third defendant’s signature on the notice of trial on 21 August 2012, be dismissed.

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: [2014] QDC 109
Decision Date: 16 May, 2014

CaseChat Overview and Summary

In the matter of Bilic and Bilic v Nicholls (No 4), the court was called upon to address the issue of costs incurred in a complex legal proceeding involving multiple parties and applications. The plaintiffs, Bilic and Bilic, sought a determination regarding the liability of O'Hare Law, the previous solicitors for the third defendant/applicant, Jimi Lee, for costs incurred due to the failure of these solicitors to seek leave to withdraw from the case. This oversight led to a default judgment and subsequent costs orders against Jimi Lee. The District Court of Queensland was tasked with resolving whether O'Hare Law should be held accountable for the costs thrown away at the trial on 25 February 2013, specifically those pertaining to Jimi Lee.

The central legal issue before the court was whether O'Hare Law, as the former solicitors for Jimi Lee, should be liable for the costs incurred by the plaintiffs due to the failure to seek leave to withdraw from the record. This issue necessitated an examination of the responsibilities of legal practitioners in ensuring timely and appropriate applications to the court, and the consequences of not fulfilling these duties. The court had to determine whether the failure to seek leave to withdraw was a breach of professional obligations that could result in personal liability for costs.

The court found that O'Hare Law was indeed liable for the costs incurred by the plaintiffs that were thrown away at the trial on 25 February 2013, to the extent these costs related to Jimi Lee. The court also granted the application to set aside the costs order made against Jimi Lee, arising from the plaintiffs' application to dispense with his signature on the notice of trial on 21 August 2012. Consequently, the previous order for costs in favour of the plaintiffs against Jimi Lee was set aside, with no order as to costs in respect of the application on 21 August 2012 being substituted. The court's decision underscored the importance of legal practitioners adhering to procedural requirements to avoid personal liability for costs.

Orders

Orders of the court

1. That O’Hare Law pay the plaintiffs/respondents’ costs on a standard basis of and in relation to those costs thrown away for the trial on 25 February 2013, insofar as the costs relate to the third defendant/applicant Jimi Lee.

2. That the third defendant/applicant’s application to set aside the costs order made against the third defendant/applicant arising out of the application by the plaintiffs/respondents to dispense with the third defendant/applicant’s signature on the notice of trial on 21 August 2012 be granted.

3. That the order for costs in favour of the plaintiffs/respondents against the third defendant/applicant made on 21 August 2012 be set aside, and in substitution, order that there be no order as to costs in respect of the application on 21 August 2012.

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:	Bilic & Bilic (No 4) v Nicholls & Ors [2014] QDC 109
PARTIES:	DRAGAN BILIC AND VESNA BILIC (plaintiffs/respondents) v ANDREW NICHOLLS (first defendant) and SHARYN LEE NICHOLLS (second defendant) and JIMI LEE (third defendant/applicant) and O’HARE LAW (non-party)
FILE NO/S:	22/11
DIVISION:	Civil
PROCEEDING:	Costs orders
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	16 May, 2014
DELIVERED AT:	Beenleigh
HEARING DATE:	11 February 2014
JUDGE:	Dearden DCJ
ORDER:	1. That O’Hare Law pay the plaintiffs/respondents’ costs on a standard basis of and in relation to those costs thrown away for the trial on 25 February 2013, insofar as the costs relate to the third defendant/applicant Jimi Lee. 2. That the third defendant/applicant’s application to set aside the costs order made against the third defendant/applicant arising out of the application by the plaintiffs/respondents to dispense with the third defendant/applicant’s signature on the notice of trial on 21 August 2012 be granted. 3. That the order for costs in favour of the plaintiffs/respondents against the third defendant/applicant made on 21 August 2012 be set aside, and in substitution, order that there be no order as to costs in respect of the application on 21 August 2012.
CATCHWORDS:	PROCEDURE – COSTS – District Court Procedure – Queensland – where previous solicitors for third defendant/applicant failed to seek leave to withdraw from record – whether previous solicitors for third defendant/applicant liable for costs for application to set aside default judgment
LEGISLATION:	High Court Rules O.7, r 7(1) Uniform Civil Procedure Rules 1999 (Qld) rr 681, 690, 990, 991.
CASES:	Bilic & Bilic (No 2)v Nicholls & Ors [2013] QDC 298. Commonwealth Bank of Australia v Davis [2004] 1 Qd R 363 534. Gitsham, Edwards and Jensen v Suncorp Metway Insurance Ltd [2002] QCA 416. Latoudis v Casey (1990) 170 CLR 534. Macteldir Pty Ltd v Dimovski [2005] FCA 1528. Plenty v Gladwin (1986) 67 ALR 26.
COUNSEL:	D A Hall for the third defendant/applicant M J Byrne for the plaintiffs/respondents S J Forrest for (non-party) O’Hare Law
SOLICITORS:	Robinson Locke Litigation Lawyers for the third defendant/applicant Pearson & Associates Solicitors for the plaintifs/respondents Barry & Nilsson Solicitors for O’Hare Law