Bradshaw v Henderson (No 2)

[2009] QDC 38

DISTRICT COURT OF QUEENSLAND

CITATION:

Bradshaw v Henderson & Anor (No 2)[2009] QDC 38

PARTIES:

GARY EDWARD BRADSHAW

Plaintiff

V

CYNTHIA HENDERSON

First Defendant

And

WALTER KIM WINSTANLEY

Second Defendant

FILE NO/S:

2005 of 2008

DIVISION:

Civil

PROCEEDING:

Application for costs after judgment

ORIGINATING COURT:

District Court of Queensland, at Brisbane

DELIVERED ON:

27 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions on costs received from all parties after judgment on 5 February 2009

JUDGE:

Alan Wilson SC, DCJ

ORDER:

1 that the second defendant pay the plaintiff’s costs of and incidental to the action (including any reserved costs) assessed on the standard basis:

(a) on the highest Magistrates Court scales applying from time to time, up to and including the date of transfer to this court;

(b) thereafter, on the scales applying in this court from time to time

2 that the second defendant pay the first defendant’s costs of and incidental to the action (including any reserved costs) assessed on the standard basis:

(a) on the highest Magistrates Court scales applying from time to time, up to and including the date of transfer to this court;

(b) thereafter, on the scales applying in this court from time to time

CATCHWORDS:

COSTS - costs where plaintiff succeeded against one defendant but failed against another – other defendant a necessary party – who should pay costs of successful defendant – whether a Bullock order or Sanderson order is appropriate  

Uniform Civil Procedure Rules 1999 (Qld) r 681, r 702

Cases considered:
Bradshaw v Henderson [2009] QDC 014.
Gould v Vaggelas (1985) 157 CLR 215
Siegert v Lawrence (1885) 11 VLR 47
Smith v Capella State High School Parents and Citizens Association [2004] QSC 039
Steppke v National Capital Development Commission (1978) 39 LGRA 94
Yamacoe Pty Ltd v Michel Survey Group Pty Ltd & Anor [2002] QSC 393

COUNSEL:

D Kelly for Plaintiff
C K Copley for First Defendant

Second Defendant appeared on own behalf

SOLICITORS:

Biggs Fitzgerald Pike
Caboolture Legal Centre

Second Defendant self-represented

[1]      In this matter I gave judgment on 5 February 2009 for the plaintiff Mr Bradshaw against the second defendant Mr Winstanley for $14,000 for claim and $6,800 for interest.  Each party has, by invitation, since delivered written submissions on costs.  The plaintiff also sought leave to read and file an affidavit of his solicitor Mr Pike sworn 5 February 2009.  Because the affidavit relates to costs, leave is granted[1].

[1]Siegert v Lawrence (1885) 11 VLR 47

[2]      The plaintiff’s success against the second defendant means he should have his costs (including any reserved costs) from that defendant.  There is no reason to depart from the general or usual rule about costs expressed in the Uniform Civil Procedure Rules, r 681 – i.e., that costs will ordinarily follow the outcome of the case.

[3]      The matter began in the Magistrates Court and was transferred to this court last year.  Although the plaintiff only recovered damages which fell within the jurisdiction of…