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

1. 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.

1. 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.

1. As I indicated in Bilic & Bilic (No 3) v Nicholls & Ors [2014] QDC 48 at paras 11 and 12, the failure by O’Hare Law to comply with Uniform Civil Procedure Rules (“UCPR”) r 990 resulted in the third defendant/applicant being deprived “of his opportunity to either defend the matter personally, brief alternative solicitors or opt not to participate in the litigation”.[1]

   [1]         Bilic & Bilic (No 2) v Nicholls & Ors [2013] QDC 298 para 25.

1. Mr Byrne submits on behalf of the plaintiffs/respondents that his clients are entitled to the costs thrown away for the trial, the judgment of which was set aside insofar as it related to the third defendant/applicant Jimi Lee. 

1. Given the view I have expressed in the decisions in Bilic & Bilic (No 3) v Nicholls & Ors [2014] QDC 48, and Bilic & Bilic (No 2) v Nicholls & Ors [2013] QDC 298, it is clear that the disastrous series of events arising from the third defendant/applicant’s non-involvement in the proceeding after the unilateral choice by O’Hare Law not to apply for leave to withdraw from the court as required to do so by UCPR r 990(1), has had an inevitable, and entirely avoidable, series of costs implications for the plaintiffs/respondents.

1. Accordingly, I consider that O’Hare Law remains responsible not only for the costs identified in paragraphs 13(1) & (2) in Bilic & Bilic (No 3) v Nicholls & Ors [2014] QDC 48, but also for the costs thrown away for the trial proceedings in this court on 25 February 2013,[2] in so far as those costs relate to the third defendant/applicant.

   [2]Bilic & Bilic v Nicholls & Ors [2013] QDC 110.

1. In respect of the application by the third defendant/applicant to set aside the order that the third defendant/applicant pay the plaintiffs/respondents’ costs of the application to dispense with the third defendant’s signature on the request for trial date filed 18 July 2012, the third defendant/applicant submits that the plaintiffs’ application for trial dates was sent to an address at 5 Pettys Road, Everton Hills,[3] despite that address not being an address for service of the third defendant/applicant; that the application was also sent to O’Hare Law, but not by way of “service” and that no affidavit of service was filed to support the application. Mr Hall, who appears on behalf of the third defendant/applicant, submits that this may have been because the plaintiffs/respondents’ solicitors were unwilling to swear that the third defendant had been served. Whether or not Mr Hall’s supposition is correct, I accept that the plaintiff/respondents should not continue to benefit from a costs order in their favour against the third defendant/applicant, given awareness the plaintiff/respondents had of the notice of 22 May 2012, purportedly filed by O’Hare Law, which had no address for service, was otherwise clearly irregular and non-compliant with UCPR r 990(1) and the unsatisfactory status of the third defendant/applicant’s legal representation and service address from that date onwards.

   [3]        Affidavit of Stephen Pearson sworn 11 October 2013, para 10, and Exhibit SJP-09.

1. In the circumstances, to that limited extent, I consider it appropriate to grant the third defendant/applicant’s application to set aside the costs order made against the third defendant/applicant on 21 August 2012 in respect of the application by the plaintiffs to dispense with the third defendant’s signature on the notice for trial. 

Orders

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.