Caplick one Executor of the Estate of Caplick v Milstern Retirement Services Pty Ltd (No 2)

[2011] QCAT 588

CITATION: Caplick one Executor of the Estate of Caplick v Milstern Retirement Services Pty Ltd and Anor (No 2) [2011] QCAT 588

PARTIES:	Lindsay Caplick one Executor of the Estate of Hazel Millicent Caplick
v
Milstern Retirement Services Pty Ltd Milstern Retirment Living Pty Ltd

APPLICATION NUMBER:   VH008-09

MATTER TYPE: Other civil dispute matters

HEARING DATE: 17 November 2011

HEARD AT:  Brisbane 

DECISION OF: Ann Fitzpatrick, Member

DELIVERED ON: 17 November 2011

DELIVERED AT: Brisbane

ORDERS MADE:

1.   The respondents pay to the applicant his costs of attending the compulsory conference held in Brisbane on 17 November 2011, on an indemnity basis.

2.   The applicant is to file and serve by 24 November 2011, a statement of his indemnity costs in relation to his attendance at the compulsory conference on 17 November 2011.  The applicant’s indemnity costs are to be evidenced by an account from Butler McDermott, Lawyers.

3.   The respondents are to pay the applicant’s indemnity costs by 15 December 2011.

CATCHWORDS:

Costs

Queensland Civil and Administrative Tribunal Act 2009, s 72(1)

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Lindsay Caplick one Executor of the Estate of Hazel Millicent Caplick represented by Peter Boyce, Butler McDermott Lawyers
RESPONDENT:	Milstern Retirement Services Pty Ltd and Milstern Retirement Living Pty Ltd represented by Mrs M Phillips, Director

REASONS FOR DECISION

1. By Order made 19 July 2011 the parties were ordered to attend a compulsory conference in this matter.

2. The compulsory conference was directed to be held at 1.30 pm on 17 November 2011.

3. The parties agreed to the compulsory conference being conducted together with another compulsory conference involving the respondents and the same or similar issues, being VH007-09.  Accordingly the compulsory conference commenced at 9.30 am.

4. The respondents were given leave to attend the conference by telephone in view of the Director, Mrs Phillips being located in Sydney.  Mrs Phillips and her accountant Mr Burns were available by telephone for the start of the two conferences.

5. Mr Caplick and his solicitor Mr Boyce travelled to Brisbane from Hervey Bay and Nambour respectively.

6. During the course of the conference Mrs Phillips left her office without notice to the Tribunal, leaving Mr Burns in attendance.  He informed me that he had no instructions to settle the matter, other than to receive a response to the last ‘without prejudice’ offer made by Mrs Phillips.

7. Mr Burns told me that he could not contact Mrs Phillips and did not know when she would return.

8. At approximately 12.00 pm I adjourned the conferences until 1.30pm (Queensland time) and asked Mr Burns to contact Mrs Phillips requiring her attendance at the resumed compulsory conferences.

9. At 1.30 pm I telephoned the offices of the respondents and spoke to Mr Burns who told me that Mrs Phillips was unable to be contacted and he did not know when she would return.

10. As a consequence the conferences were unable to proceed. 

11. Mr Boyce sought the costs of his client’s attendance in Brisbane for the conferences under section 72 of the Queensland Civil and Administrative Tribunal Act 2009.

12. On the basis that Mr Caplick and Mr Boyce’s journey and attendance at the compulsory conference were wasted by Mrs Phillips abandoning the conferences, I order that the respondents pay the applicant’s costs of attendance at the conference on an indemnity basis.

13. I order that the applicant file and serve by 24 November 2011, a statement of his indemnity costs in relation to attendance at the compulsory conference on 17 November 2011.  The applicant’s indemnity costs will be evidenced by an account from Butler McDermott, Lawyers.

14. I order that the respondents pay the applicant’s costs by 15 December 2011.