Brose v Baluskas (No 2)

[2018] QDC 239

DISTRICT COURT OF QUEENSLAND

CITATION: 

Brose v Baluskas & Ors (No 2) [2018] QDC 239

PARTIES:

TRACEY ANN BROSE
(plaintiff)

v

DONNA JOY BALUSKAS
(first defendant)

and

MIGUEL BALUSKAS
(second defendant)

and

TRUDIE ARNOLD
(third defendant)

and

IAN MARTIN
(fourth defendant)

and

KERRI ERVIN
(fifth defendant)

and

LAURA LAWSON

(sixth defendant)

and

CHARMAINE PROUDLOCK
(seventh defendant)

FILE NO/S:

D148 of 2016

DIVISION:

Civil

PROCEEDING:

Application for costs

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

16 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers 

JUDGE:

Muir DCJ

ORDER:

The third, fifth and seventh defendants each pay one third of the plaintiff’s costs (of opposing the applications for leave to re-plead a defence of honest opinion heard on the papers), to be assessed on the indemnity basis.   

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – where the third, fifth and seventh defendants were wholly unsuccessful in their applications to be granted leave to re-plead the defence of honest opinion – whether there is a “special or unusual feature” warranting such an order – whether the applications persisted in wilful disregarded of established law.

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – JOINTLY AND SEVERALLY LIABLE – where the plaintiff seeks an order the unsuccessful applicant defendants be made jointly and severally liable for the costs of the applications – where the normal rule warrants such an order – whether the court should exercise its discretion to make separate order for each defendant.   

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld), rr 681, 703

CASES:

Brose v Baluskas & Ors [2018] QDC 214

Cart Provider Pty Ltd & Ors v Park & Ors [2017] QSC 27 Herald and Weekly Times Pty Ltd & Anor v Buckley (2009) 21 VR 661
Interchase Corporation Limited (in liq) v Grosvenor Hill (Queensland Pty Ltd (No 3) [2003] 1 Qd R 26
Mike Gaffikin Marine Pty Ltd v Princes Street Marina Pty Ltd [1997] NSWSC 17
Oshlack v Richmond River Council (1998) 193 CLR 72
Palmer v Parbery & Ors [2018] QCA 268
Royal v El Ali (No 3) [2016] FCA 1573
Tomasetti v Brailey [2012] NSWSC 120
Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201

COUNSEL:

Mills Oakley (sols) for the applicant third, fifth and seventh defendants

H Blattman for the respondent plaintiff

SOLICITORS:

Mills Oakley for the applicant fifth and seventh defendants

Bennett & Philp Lawyers for the respondent plaintiff

Overview

1. On 31 October 2018, I gave judgment dismissing applications by the third, fifth and seventh defendants for leave to re-plead defences of honest opinion.[1]  In doing so I stated my preliminary view as to the appropriate costs order to be that each of these unsuccessful defendants pay one third of the plaintiff’s costs to be assessed if not agreed.  I allowed the parties the opportunity to provide written submissions if alternative orders as to costs were sought and or could not be agreed. I…