SUPREME COURT OF QUEENSLAND
CITATION:
Campbell v Turner & Ors (No. 2) [2007] QSC 362
PARTIES:
WAYNE ALEXANDER CAMPBELL and MARY-ANNE MONICA CAMPBELL
(plaintiffs)v
LIONEL JOSEPH JAMES TURNER and ELSIE EDITH TURNER
(first defendants)
BOHLE GRAZING PTY LTD (ACN 010 552 762)
(second defendant)
HERBERT SAMUEL TURNER
(third defendant)
LYNDEL ISABEL OWENS
(fourth defendant)FILE NO:
No 97 of 2004 (Cairns)
DIVISION:
Trial Division
PROCEEDING:
Application for costs (following trial)
DELIVERED ON:
5 December 2007
DELIVERED AT:
Supreme Court, Brisbane
HEARING DATES:
Heard on the papers
JUDGE:
Wilson J
ORDER:
That the first defendants pay the plaintiffs $30,000 plus interest at 9 per cent per annum from 21 March 1990 to judgment1.
2. That the claim against the second, third and fourth defendants be dismissed
That the first defendants pay the plaintiffs’ costs of and incidental to the proceeding up to and including 12 February 2007 to be assessed on the standard basis on the applicable Magistrates Courts scale3.
That the plaintiffs pay the first defendants’ costs of and incidental to the proceeding after 12 February 2007 to be assessed on the standard basis on the Supreme Court scale4.
That the plaintiffs pay the second, third and fourth defendants’ costs of and incidental to the proceeding to be assessed on the standard basis on the Supreme Court scale (each of those defendants being entitled to one-quarter of the whole costs of defending the proceeding on that scale)5.
That upon the first defendants’ paying the judgment debt (being $30,000 plus interest to today) into court, enforcement of the judgment debt be stayed pending assessment and payment of the costs ordered to be paid by the plaintiffs to the first, second, third and fourth defendants, including costs ordered to be paid by Cullinane J on 14 December 2005, or earlier agreement of the parties6.
CATCHWORDS:
PROCEDURE – COSTS – SCALES OF COSTS – SCALE APPLICABLE – the plaintiffs were awarded $30,000 pursuant to the Land Sales Act, plus interest in the amount of approximately $48,000 – whether the proceeding could have been heard in a Magistrates Court – whether to award costs on the Magistrates Courts scale
PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF PARTIES – DEMAND, OFFER AND CONSENT – the defendants made an offer to settle pursuant to the Uniform Civil Procedure Rules – the defendants delivered an amended defence contemporaneously with the offer – the plaintiffs obtained judgment for an amount less than the offer – whether to award the defendants costs from the date of the offer
PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – CO-DEFENDANTS – each defendant had the same legal representation – the plaintiffs obtained judgment against the first defendants – the plaintiffs’ claim was dismissed as against the other defendants – whether to award the successful defendants their costs
PROCEDURE – COSTS – SET-OFF – the costs estimated to be payable by the plaintiffs to the defendants exceeds the judgment sum – whether…
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- AGLC
- Campbell v Turner (No. 2) [2007] QSC 362
- Case
- [2007] QSC 362
- Decision Date
CaseChat Overview and Summary
The court had to decide several issues related to the costs of the proceeding. The first was whether the matter could have been heard in the Magistrates Court and thus whether the costs should be assessed on the Magistrates Court scale. The second issue was whether the defendants should be awarded costs from the date of their offer to settle, given that the plaintiffs obtained judgment for a lesser amount. The third issue was whether the successful defendants should be awarded their costs, given that the plaintiffs obtained judgment against only one defendant. The fourth issue was whether the judgment debt should be set off against the costs payable by the plaintiffs. Finally, the court had to decide whether to grant the defendants a stay of the judgment pending assessment of their costs, which were likely to exceed the judgment sum.
The court found that the proceeding could have been heard in the Magistrates Court, and thus the costs should be assessed on the Magistrates Court scale up to the date of the offer to settle. However, because the plaintiffs obtained judgment for a lesser amount than the offer, the defendants were not entitled to costs from the date of the offer. The successful defendants were entitled to their costs, and the judgment debt should be set off against the costs payable by the plaintiffs. The court granted the defendants a stay of the judgment pending assessment of their costs, or earlier agreement of the parties. The final orders included payment of the judgment sum and interest by the first defendants, dismissal of the claim against the other defendants, and orders for costs to be assessed on the appropriate scales.
Orders
Orders of the court
That the first defendants pay the plaintiffs $30,000 plus interest at 9 per cent per annum from 21 March 1990 to judgment1.
2. That the claim against the second, third and fourth defendants be dismissed
That the first defendants pay the plaintiffs’ costs of and incidental to the proceeding up to and including 12 February 2007 to be assessed on the standard basis on the applicable Magistrates Courts scale3.
That the plaintiffs pay the first defendants’ costs of and incidental to the proceeding after 12 February 2007 to be assessed on the standard basis on the Supreme Court scale4.
That the plaintiffs pay the second, third and fourth defendants’ costs of and incidental to the proceeding to be assessed on the standard basis on the Supreme Court scale (each of those defendants being entitled to one-quarter of the whole costs of defending the proceeding on that scale)5.
That upon the first defendants’ paying the judgment debt (being $30,000 plus interest to today) into court, enforcement of the judgment debt be stayed pending assessment and payment of the costs ordered to be paid by the plaintiffs to the first, second, third and fourth defendants, including costs ordered to be paid by Cullinane J on 14 December 2005, or earlier agreement of the parties6.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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