Clements v Loel - [2023] QSC 271

SUPREME COURT OF QUEENSLAND

CITATION:

Clements v Loel [2023] QSC 271

PARTIES:

STEVEN ALEXANDER CLEMENTS

(plaintiff)

v
JAMES BERESFORD LOEL

(first defendant)

AND

LILLAS & LOEL LAWYERS PTY LTD

(second defendant)

FILE NO/S:

5060/23

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme

DELIVERED ON:

29 November 2023

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers – review on 17 November 2023

JUDGE:

Freeburn J

ORDER:

The costs of the application filed on 1 September 2023 will be each parties’ costs in the proceeding.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INTERLOCUTORY PROCEEDINGS – COSTS IN THE CAUSE – where the plaintiff applied for summary judgment – where the parties consented to orders dismissing the summary judgment application – where the parties have been unable to agree on the appropriate orders as to costs – whether the costs of the application should be each parties’ costs in the proceeding

Uniform Civil Procedure Rules 1999

Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232
Queensland v Nixon [2002] QSC 296
Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107
Ridgepoint Corp Pty Ltd v McCallum Donovan Sweeney [2011] WASC 185

COUNSEL:

C Johnstone for the plaintiff
BK Nolan for the defendants

SOLICITORS:

Russells (plaintiff)
Cochrane Leahy Litigation (defendant)

Mr Clements seeks damages for negligence, breach of contract and equitable compensation for breach of fiduciary duty against his former solicitor, Mr Loel, and Mr Loel’s incorporated legal practice. For convenience I will refer to both defendants as the law firm.
Mr Clements retained the law firm to act for him in the sale of a property at Mutdapily. The sale was completed in July 2017. The result was that the proceeds of sale of nearly $1.7m was deposited into the law firm’s trust account.
Then, the law firm was retained by Mr Clements to act as his solicitors in a transaction whereby Mr Clements lent up to $700,000 to a company called Maitland Finance and Acquisition Pty Ltd. A loan agreement was drafted by the law firm. The security for the loan was intended to be a second registered mortgage over a residential property in St Ives in Sydney.
No second mortgage over the property was ever obtained. Various payments were made to Maitland. Mr Clements says the payments were not authorised payments under the loan agreement. The law firm says the payments were authorised by the loan agreement or were “otherwise instructed by Mr Clements.”
The proceeding has been managed on the commercial list. Pursuant to commercial list directions, Mr Clements filed an application for summary judgment on 1 September 2023. The parties exchanged affidavit material. The parties then consented to orders dismissing the summary judgment application.
The parties were not able to agree on the appropriate costs order. The parties have exchanged written submissions on the costs issue and have agreed that this issue can be decided “on the papers”.[1]
[1]See Chapter 13 Part 6 of the

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 Clements v Loel

Details

AGLC: Clements v Loel [2023] QSC 271
Case: [2023] QSC 271
Decision Date: 29 November 2023

CaseChat Overview and Summary

The case of Clements v Loel involved the plaintiff, Clements, who sought summary judgment against the defendant, Loel. The proceedings were before the court, and the primary dispute centred on the costs incurred during an interlocutory application for summary judgment. The plaintiff's application for summary judgment was dismissed by consent of both parties. However, the disagreement arose when the parties could not agree on the appropriate costs order for the interlocutory application. The court was required to determine whether the costs of the application should be borne by each party as their costs in the proceeding.

The legal issue before the court was whether the costs of the interlocutory application for summary judgment should be each party's costs in the proceeding, given that the application was dismissed by consent. The court considered the principles of costs in civil proceedings and the precedents that guide the allocation of costs in such circumstances. It examined the nature of the application, the outcome, and the conduct of the parties leading up to the dismissal.

In reaching its decision, the court emphasised that where parties have agreed to dismiss an application by consent, the usual rule is that each party bears their own costs of the application. The court found that there were no exceptional circumstances to deviate from this principle. Therefore, the court ruled that the costs of the application filed on 1 September 2023 would be each party's costs in the proceeding. This decision aligns with the general approach to costs in civil litigation, ensuring that neither party is unfairly burdened with the costs of an application that was ultimately dismissed by mutual agreement.

The final orders of the court were that the costs of the application filed on 1 September 2023 would be each party's costs in the proceeding. This decision underscores the importance of clear and mutually agreed terms when dismissing applications by consent and the application of standard principles in determining the allocation of costs.

Orders

Orders of the court

The costs of the application filed on 1 September 2023 will be each parties’ costs in the proceeding.

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:	Clements v Loel [2023] QSC 271
PARTIES:	STEVEN ALEXANDER CLEMENTS (plaintiff) v JAMES BERESFORD LOEL (first defendant) AND LILLAS & LOEL LAWYERS PTY LTD (second defendant)
FILE NO/S:	5060/23
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme
DELIVERED ON:	29 November 2023
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers – review on 17 November 2023
JUDGE:	Freeburn J
ORDER:	The costs of the application filed on 1 September 2023 will be each parties’ costs in the proceeding.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INTERLOCUTORY PROCEEDINGS – COSTS IN THE CAUSE – where the plaintiff applied for summary judgment – where the parties consented to orders dismissing the summary judgment application – where the parties have been unable to agree on the appropriate orders as to costs – whether the costs of the application should be each parties’ costs in the proceeding Uniform Civil Procedure Rules 1999 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 Queensland v Nixon [2002] QSC 296 Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107 Ridgepoint Corp Pty Ltd v McCallum Donovan Sweeney [2011] WASC 185
COUNSEL:	C Johnstone for the plaintiff BK Nolan for the defendants
SOLICITORS:	Russells (plaintiff) Cochrane Leahy Litigation (defendant)