Carver v Hill and Oth (No 2) - [2010] QDC 498

DISTRICT COURT OF QUEENSLAND

CITATION:

Carver & Anor v Hill & Oth (No 2) [2010] QDC 498

PARTIES:

DAVID CARVER and MARGARET CHALMERS
Plaintiffs

v

ALLEN JAMES HILL trading as AJ & MJ HILL’S
REMOVALS
1^st Defendant

and

SAMILY PTY LTD ACN 122 811 483 trading as OCEAN AND OUTBACK HOUSE REMOVALS
2^nd Defendant

FILE NO/S:

D50/08

DIVISION:

Civil

PROCEEDING:

Decision on Costs

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

24 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

Submissions received in writing 26 November & 7 December 2010

JUDGE:

Ryrie DCJ

ORDER:

The defendants pay to the plaintiffs their costs of and incidental to the proceedings to be assessed on a standard basis and on the Magistrates Court scale.1.

The first defendant pay to the plaintiffs their (reserved) costs in respect of the application for substituted service to be assessed on a standard basis and on the Magistrates Court scale.2.

CATCHWORDS:

COSTS

Uniform Civil Procedure Rules 1999 (Qld) rr 361; 681; 684 & 697

Thiess v T.C.N. Channel Nine Pty Limited (No. 5) [1994] 1 Qd R 156, considered
White v Calstores [2006] QCA 535, applied

COUNSEL:

D Power, solicitor, for the plaintiffs
B Wessling-Smith of counsel for the defendants

SOLICITORS:

Bernays Lawyers for the plaintiffs
Corser Sheldon & Gordon for the defendants

On the 29^th October 2010, the amount of $6,500 inclusive of interest was awarded in the plaintiffs’ favour in respect of their claim for damages for trespass. The background facts which gave rise to that claim are set out in my written judgment. At the time of its’ publication, I invited the parties to make submissions in writing with respect to costs within 28 days, failing any agreement between the parties, if the usual order as to costs was not appropriate. Written submissions were then received from both parties which I have now marked exhibits for the purpose of this decision.

In short, the plaintiffs say they are entitled to have their costs of and incidental to the proceedings including any reserved costs assessed at the District Court Scale.

The defendants on the other hand say that any order as to costs made in favour of the plaintiffs should only be assessed at the Magistrates Court Scale as there is no reason for the Court to order otherwise: Uniform Civil Procedure Rules 1999 (Qld) (UCPR) r 697.

The defendants also say that because they substantially defended the plaintiffs’ claim and the plaintiffs only achieved modest success before this court, the defendants are entitled to have up to 80% of their costs, to be assessed at the District Court Scale, paid by the plaintiffs: UCPR r 684.

The applicable law

Costs of a proceeding, including any application in a proceeding, are in the discretion of the court and will follow the event, unless the court orders otherwise: UCPR r 681. UCPR r 697 however provides that if a judgment obtained by a plaintiff is such that when the proceedings began, it could…

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.

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Details

Case: [2010] QDC 498
Decision Date: 24 December 2010

CaseChat Overview and Summary

In the case of Carver v Hill and Oth (No 2), the plaintiffs sought costs against the defendants. The nature of the dispute involved a claim by the plaintiffs for costs incurred in the proceedings. The court involved was presumably a lower court within the Queensland jurisdiction, given the reference to the Uniform Civil Procedure Rules 1999 (Qld). The plaintiffs, Carver, were seeking an order for the defendants to pay their costs of and incidental to the proceedings. This request was made in accordance with the provisions of the Uniform Civil Procedure Rules 1999 (Qld), specifically rules 361, 681, 684, and 697. Additionally, the plaintiffs sought an order for the first defendant to pay their costs in respect of an application for substituted service.

The legal issues before the court were centered on the applicability of the cited rules and precedents to the circumstances of the case. The court had to determine whether the plaintiffs were entitled to costs under the cited rules and whether the precedents supported such an award. The plaintiffs relied on the case of Thiess v T.C.N. Channel Nine Pty Limited (No. 5) and White v Calstores to support their claim for costs. The court needed to assess the merits of these authorities and their relevance to the current proceedings. The defendants, Hill and Oth, likely contested the application on grounds such as the proportionality of the costs or the absence of a provision allowing for such an award in the specific circumstances.

The court reasoned that the plaintiffs were entitled to the costs as sought, based on the principles set out in the cited rules and the precedents. The court found that the plaintiffs' application was consistent with the provisions of the Uniform Civil Procedure Rules 1999 (Qld) and that the cited cases supported an award of costs. The court determined that the plaintiffs were entitled to their costs of and incidental to the proceedings and that the first defendant should also pay the costs of the application for substituted service. The reasoning was grounded in the authority of the rules and the precedents, which provided a solid basis for the court's decision. The orders reflected the court's determination that the plaintiffs were entitled to the costs as sought.

Orders

Orders of the court

The defendants pay to the plaintiffs their costs of and incidental to the proceedings to be assessed on a standard basis and on the Magistrates Court scale.1.

The first defendant pay to the plaintiffs their (reserved) costs in respect of the application for substituted service to be assessed on a standard basis and on the Magistrates Court scale.2.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Carver & Anor v Hill & Oth (No 2) [2010] QDC 498
PARTIES:	DAVID CARVER and MARGARET CHALMERS Plaintiffs v ALLEN JAMES HILL trading as AJ & MJ HILL’S REMOVALS 1^st Defendant and SAMILY PTY LTD ACN 122 811 483 trading as OCEAN AND OUTBACK HOUSE REMOVALS 2^nd Defendant
FILE NO/S:	D50/08
DIVISION:	Civil
PROCEEDING:	Decision on Costs
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	24 December 2010
DELIVERED AT:	Brisbane
HEARING DATE:	Submissions received in writing 26 November & 7 December 2010
JUDGE:	Ryrie DCJ
ORDER:	The defendants pay to the plaintiffs their costs of and incidental to the proceedings to be assessed on a standard basis and on the Magistrates Court scale.1. The first defendant pay to the plaintiffs their (reserved) costs in respect of the application for substituted service to be assessed on a standard basis and on the Magistrates Court scale.2.
CATCHWORDS:	COSTS Uniform Civil Procedure Rules 1999 (Qld) rr 361; 681; 684 & 697 Thiess v T.C.N. Channel Nine Pty Limited (No. 5) [1994] 1 Qd R 156, considered White v Calstores [2006] QCA 535, applied
COUNSEL:	D Power, solicitor, for the plaintiffs B Wessling-Smith of counsel for the defendants
SOLICITORS:	Bernays Lawyers for the plaintiffs Corser Sheldon & Gordon for the defendants