Collins v Marinovich

Case [2023] QSC 187

SUPREME COURT OF QUEENSLAND

CITATION:

Collins v Marinovich & Ors [2023] QSC 187

PARTIES:

ANGELIQUE ANNE COLLINS

(applicant/plaintiff)

v
JOSIP MARINOVICH, SUSAN WHITEHAND, THERESA BROOK, CHRISTINE WALKER
(AS EXECUTORS AND TRUSTEES OF THE WILL OF PHYLLIS POWER-NEMETH DECEASED)

(first respondents/first defendants)
AND
CHRISTINE WALKER
(second respondent/second defendant)

FILE NO/S:

BS 6150 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

11 August 2023 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

9 August 2023

JUDGE:

Muir J

ORDER:

The first respondents are granted an indemnity certificate under s. 15(1) of the Appeal Costs Fund Act 1973 (Qld)

CATCHWORDS:

APPEAL AND NEW TRIAL - PROCEDURE - QUEENSLAND - APPEAL COSTS FUND - POWER TO GRANT INDEMNITY CERTIFICATE - GENERAL PRINCIPLES AS TO GRANT OR REFUSAL - where the Supreme Court set aside a costs assessor’s certificate on a review pursuant to rule 742(1) of the Uniform Civil Procedure Rules 1999 (Qld) - whether review succeeded on the ground that the costs assessor’s decision was manifestly wrong - where the unsuccessful respondents in the review apply for an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) - whether the court should exercise its discretion to grant an indemnity certificate

Appeal Costs Fund Act 1973 (Qld) s 15, s 21

Uniform Civil Procedure Rules 1999 (Qld) r 742(1)

Collins v Marinovich & Ors [2023] QSC 175

Eversden Pty Ltd v Miladi [2015] QCA 203

Ivory v Griffith University [1997] QSC 71

Lauchlan v Hartley [1980] Qd R 149

Vella v Larson [1982] Qd R 298

Wiesac Pty Ltd v Insurance Australia Limited (No 4) [2021] QSC 156

COUNSEL:

JP Hastie for the applicant/plaintiff
S Hartwell for the first respondents/defendants
The second respondent/defendant appeared on her own behalf

SOLICITORS:

Woods Prince Lawyers for the applicant
Moore Lawyers for the first respondents/defendants
The second respondent/defendant appeared on her own behalf

  1. On 14 June 2021, Ryan J gave judgment for the applicant plaintiff in this proceeding.[1]  On 27 July 2021, her Honour ordered as follows:[2]

    “The Second Respondent is to pay the Applicant’s costs of the proceeding.  The First Respondent is to pay the Applicant’s costs of paragraph one of the Applicant’s originating application filed 12 June 2019.”

  2. On 28 July 2023, this Court heard an application pursuant to r 724(1) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) by the applicant to review a decision made by a cost assessor in a cost assessor’s certificate of assessment issued by him on 4 October 2022.

  3. On 9 August 2021, judgment was granted in favour of the applicant and orders setting aside the cost assessor’s decision with a direction that the cost assessment be remitted back to the same costs assessor to undertake the assessment pursuant to the judgment of this Court were made. The first respondents were also ordered to pay the…

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AGLC
Collins v Marinovich [2023] QSC 187
Case
[2023] QSC 187
Decision Date

CaseChat Overview and Summary

The case of Collins v Marinovich involved the Collins family, who were the applicants, and Marinovich and others, who were the respondents. The dispute originated in the Supreme Court of Queensland, where the applicants sought to challenge a costs assessor’s certificate. The Supreme Court had previously set aside the costs assessor’s certificate on review. The respondents in that review now applied for an indemnity certificate under the Appeal Costs Fund Act 1973 (Qld), arguing they were entitled to indemnity costs due to the unsuccessful review of the costs certificate.

The legal issues before the court involved determining whether the respondents were eligible for an indemnity certificate. The applicants argued that the respondents were not entitled to indemnity costs because their review did not succeed on the ground that the costs assessor’s decision was manifestly wrong. The court was required to consider the principles governing the grant of indemnity certificates and assess whether the respondents' review met the necessary criteria.

The court considered precedents such as Eversden Pty Ltd v Miladi and Wiesac Pty Ltd v Insurance Australia Limited (No 4), which outlined the principles governing indemnity costs. It found that the respondents had succeeded in their review, as the costs assessor’s certificate was set aside. The court also noted that the respondents had not acted unreasonably in pursuing their review. Based on these findings, the court exercised its discretion to grant the respondents an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 (Qld).

The court ordered that the first respondents were granted an indemnity certificate under s 15(1) of the Appeal Costs Fund Act 1973 (Qld). This decision underscores the importance of the court's discretion in assessing indemnity costs, particularly in cases where a review of a costs assessor’s certificate is successful.

Orders

Orders of the court

The first respondents are granted an indemnity certificate under s. 15(1) of the Appeal Costs Fund Act 1973 (Qld)

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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