SUPREME COURT OF QUEENSLAND
CITATION:
Collins v Marinovich & Ors [2023] QSC 175
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:
BS6150 of 2019
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
9 August 2023
DELIVERED AT:
Brisbane
HEARING DATE:
28 July 2023
JUDGE:
Muir J
ORDERS
1. The application for review filed 25 November 2022 is allowed.
2. The decisions made by the costs assessor Mr Graham Robinson in the cost assessor’s certificate of assessment issued by him on 4 October 2022 (Certificate) is set aside.
3. The costs assessment to be undertaken pursuant to the consent order of the registrar dated 3 May 2022 is remitted back to Mr Robinson to be conducted on:
(a) the basis:
(i) that the first and second respondents are jointly and severally liable for the applicant’s costs of paragraph one of the originating application;
(ii) of the reasons for judgment of Muir J dated 9 August 2023; and
(b) otherwise, the material which was before Mr Robinson when he made the decision contained in the Certificate.
4. The first respondents pay the applicant’s costs of obtaining Mr Robinsons’s reasons for the decision made by him in the Certificate.
5. The first respondents pay the applicant’s costs of the application filed 25 November 2022.
CATCHWORDS:
PROCEDURE – COSTS – TAXATION – REVIEW – PRINCIPLES APPLICABLE – INTERFERENCE WITH EXERCISE OF DISCRETION – where the trial judge ordered the second respondent to pay the applicant’s costs of the proceeding and the first respondents to pay the applicant’s costs of paragraph one of the originating application – whether order imposed joint and several liability on the first and second respondents for the costs of paragraph one of the originating application – whether decision by costs assessor to assess costs only attributable to first respondents and to apportion joint costs of paragraph one of the originating application and not to assess the second respondent’s costs was manifestly wrong – whether if decision is set aside, assessment should be remitted to another cost assessor or to the same cost assessor
Uniform Civil Procedure Rules 1999 (Qld) r 679, 681, 740, 737 742
Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621
Bert & Ors v Red 5 Limited & Anor [2017] QSC 8BHP Coal Pty Ltd v O & K Orenstein & Koppel AG and Ors (No 2) [2009] QSC 64
Bitzer Australia Pty Ltd v Japp [2014] FCA 1040
Bombala Farmers Flour Mills Co v Victoria Insurance (1887) 3 WN (NSW) 103b
City of Swan v Lehman Brothers Australia (No 3) [2009] FCA 1190
Collins v Marinovich & Ors [2020] QSC 250
Collins v Marinovich & Ors [2021] QSC 141
Collins v Marinovich & Ors [2021] QSC 175
Donohoe v Britz (No 2)
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- AGLC
- Collins v Marinovich [2023] QSC 175
- Case
- [2023] QSC 175
- Decision Date
CaseChat Overview and Summary
The court examined the relevant legal principles, including UCPR r 742, which governs the review of a costs assessor's decision. The court noted that the costs order made by the trial judge required the second respondent to pay the applicant's costs of the proceeding, and the first respondents to pay the applicant's costs of paragraph one of the originating application. The court found that the costs assessor's decision to assess costs only attributable to the first respondents and to apportion joint costs of paragraph one of the originating application and not to assess the second respondent's costs was manifestly wrong. The court also determined that if the decision was set aside, the assessment should be remitted to the same cost assessor.
In conclusion, the court allowed the application for review and set aside the decisions made by the costs assessor. The costs assessment was remitted back to Mr Robinson to be conducted on the basis that the first and second respondents were jointly and severally liable for the applicant's costs of paragraph one of the originating application, and of the reasons for judgment of Muir J dated 9 August 2023. Additionally, the first respondents were ordered to pay the applicant's costs of obtaining Mr Robinson's reasons for the decision made by him in the Certificate, as well as the applicant's costs of the application filed on 25 November 2022.
Orders
Orders of the court
1. The application for review filed 25 November 2022 is allowed.
2. The decisions made by the costs assessor Mr Graham Robinson in the cost assessor’s certificate of assessment issued by him on 4 October 2022 (Certificate) is set aside.
3. The costs assessment to be undertaken pursuant to the consent order of the registrar dated 3 May 2022 is remitted back to Mr Robinson to be conducted on:
(a) the basis:
(i) that the first and second respondents are jointly and severally liable for the applicant’s costs of paragraph one of the originating application;
(ii) of the reasons for judgment of Muir J dated 9 August 2023; and
(b) otherwise, the material which was before Mr Robinson when he made the decision contained in the Certificate.
4. The first respondents pay the applicant’s costs of obtaining Mr Robinsons’s reasons for the decision made by him in the Certificate.
5. The first respondents pay the applicant’s costs of the application filed 25 November 2022.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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