Brooks v Zammit (No. 2) - [2011] QSC 186

SUPREME COURT OF QUEENSLAND

CITATION:

Brooks v Zammit & Anor (No. 2) [2011] QSC 186

PARTIES:

PATRICIA BROOKS
(plaintiff)
v
MICHELLE ZAMMIT
(first defendant)
And
SUNCORP METWAY INSURANCE LTD
ABN 83 075 695 966
(second defendant)

FILE NO/S:

S122 of 2010

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court Mackay

DELIVERED ON:

22 June 2011

DELIVERED AT:

Rockhampton

HEARING DATE:

22 June 2011

JUDGE:

McMeekin J

ORDER:

1.   The plaintiff pay the second defendant’s costs of the application to adjourn the trial in the May sittings of the circuit court at Mackay.

2.   The plaintiff pay any costs incurred by the second defendant in its application to adduce further expert evidence brought in the May sittings of the circuit court at Mackay.

3.   Subject to the forgoing orders, the second defendant pay the plaintiff’s costs of the proceedings on the indemnity basis.

CATCHWORDS:

PROCEDURE – COSTS – on which basis costs should be awarded – costs of adjourned hearing thrown away – costs of application for additional evidence

Uniform Civil Procedure Rules 1999 (Qld)

Brooks v Zammit & Anor [2011] QSC 181

COUNSEL:

GF Crow SC for the plaintiff

R Green for the second defendant

SOLICITORS:

Macrossan & Amiet for the plaintiff

Grant & Simpson for the second defendant

McMEEKIN J: On 22 June 2011 I gave judgment in favour of the plaintiff against the second defendant in the sum of $689,379.52[1] and indicated I would hear from counsel on costs. Later that day I heard oral submissions and reserved the question of costs.
[1]See [2011] QSC 181

The plaintiff seeks costs of the proceedings on the indemnity basis. The second defendant opposes that order and contends that I should make the following orders:
(a)        order the plaintiff to pay the defendant’s costs of an adjourned hearing thrown away;
(b)        order the plaintiff to pay the defendant’s costs of an application for leave to adduce evidence from an occupational therapist;
(c)        order the second defendant to pay the plaintiff’s costs of the proceedings on the standard basis.

Costs of the Adjourned Hearing

In early May 2011 the matter was to be heard in the sittings of the circuit court in Mackay. The defendant filed an application to adjourn the trial because of the late receipt of expert evidence opinion from the plaintiff. The defendant contended that it needed time to respond to that material by seeking a report from an occupational therapist.

As matters transpired the criminal work before Cullinane J in that sittings prevented the trial going ahead in any case. Hence Cullinane J had no need to determine the application. That was not known at the time of filing of the adjournment application and supporting affidavit.

The expert opinion evidence went to the issue of care and assistance that the plaintiff required.

In the hypothetical situation of the trial being expected to proceed in that sittings of the circuit court and had I been required to hear and determine the application, I have no doubt that…

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.

Continue reading Brooks v Zammit (No. 2)

Details

AGLC: Brooks v Zammit (No. 2) [2011] QSC 186
Case: [2011] QSC 186
Decision Date: 22 June 2011

CaseChat Overview and Summary

The case of Brooks v Zammit (No. 2) involved a dispute between the plaintiff, Brooks, and the second defendant, Zammit. The case was heard in the May sittings of the circuit court at Mackay, where the primary issue was the basis on which costs should be awarded in the proceedings. The plaintiff had sought costs of an adjourned hearing, while the second defendant had sought costs of an application for additional evidence. The court was required to determine the appropriate costs to be awarded to each party.

The legal issue before the court was to determine the appropriate costs to be awarded to each party in the proceedings. The court had to consider the costs of the adjourned hearing and the costs of the application for additional evidence. The court was required to decide whether the costs of the adjourned hearing should be thrown away or if the second defendant should be awarded costs for the application for additional evidence. The court also had to determine whether the second defendant should pay the plaintiff's costs of the proceedings on the indemnity basis.

The court held that the plaintiff should pay the second defendant's costs of the application to adjourn the trial and the costs of the application to adduce further expert evidence. The court held that the costs of the adjourned hearing should be thrown away. However, the court held that the second defendant should pay the plaintiff's costs of the proceedings on the indemnity basis, subject to the foregoing orders.

The court ordered that the plaintiff pay the second defendant's costs of the application to adjourn the trial and the costs of the application to adduce further expert evidence. The court also ordered that the second defendant pay the plaintiff's costs of the proceedings on the indemnity basis, subject to the foregoing orders.

Orders

Orders of the court

1. The plaintiff pay the second defendant’s costs of the application to adjourn the trial in the May sittings of the circuit court at Mackay.

2. The plaintiff pay any costs incurred by the second defendant in its application to adduce further expert evidence brought in the May sittings of the circuit court at Mackay.

3. Subject to the forgoing orders, the second defendant pay the plaintiff’s costs of the proceedings on the indemnity basis.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Brooks v Zammit & Anor (No. 2) [2011] QSC 186
PARTIES:	PATRICIA BROOKS (plaintiff) v MICHELLE ZAMMIT (first defendant) And SUNCORP METWAY INSURANCE LTD ABN 83 075 695 966 (second defendant)
FILE NO/S:	S122 of 2010
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court Mackay
DELIVERED ON:	22 June 2011
DELIVERED AT:	Rockhampton
HEARING DATE:	22 June 2011
JUDGE:	McMeekin J
ORDER:	1. The plaintiff pay the second defendant’s costs of the application to adjourn the trial in the May sittings of the circuit court at Mackay. 2. The plaintiff pay any costs incurred by the second defendant in its application to adduce further expert evidence brought in the May sittings of the circuit court at Mackay. 3. Subject to the forgoing orders, the second defendant pay the plaintiff’s costs of the proceedings on the indemnity basis.
CATCHWORDS:	PROCEDURE – COSTS – on which basis costs should be awarded – costs of adjourned hearing thrown away – costs of application for additional evidence Uniform Civil Procedure Rules 1999 (Qld) Brooks v Zammit & Anor [2011] QSC 181
COUNSEL:	GF Crow SC for the plaintiff R Green for the second defendant
SOLICITORS:	Macrossan & Amiet for the plaintiff Grant & Simpson for the second defendant