Collins v Marinovich

Case [2023] QSC 175

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 8

BHP 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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Details
AGLC
Collins v Marinovich [2023] QSC 175
Case
[2023] QSC 175
Decision Date

CaseChat Overview and Summary

The case of Collins v Marinovich involved a dispute regarding costs in a proceeding in the Queensland Supreme Court. The applicant, Collins, sought a review of the costs assessment conducted by the costs assessor, Mr Robinson, who had determined the costs attributable to the first respondents only, apportioned certain costs between the first and second respondents, and directed that the applicant deliver a costs statement for its costs of the proceeding, excluding the costs of paragraph one of the originating application. The issue before the court was whether Mr Robinson's decision was manifestly wrong, and if so, whether the assessment should be remitted to another cost assessor or to the same cost assessor.

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

The applicant successfully obtained the declaration and consequential orders. She was also successful in obtaining the following costs orders against the respondents:[4] “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.”[4]The costs judgment was delivered on 27 July 2021: Collins v Marinovich & Ors [2021] QSC 175. All parties were legally represented in the costs argument. The costs order made was formally taken out on 5 August 2021: Court File index 56. It is not in issue that the relief sought in paragraph one of the originating application filed 12 June 2019 was the main issue in the proceeding,[5] although there were other issues raised in a counterclaim (that were later abandoned by the first respondents) and from the machinery provisions of the order.[6] [5]It is also not in dispute that an amended application was filed on 12 July 2019 [Court File index 8] in which the applicant maintained her claim for the declaration but the machinery orders sought in the originating application were deleted and replaced with orders with similar effect except that an order was sought that the registrar of the Court sign any discharge if the respondents failed to do so. [6]On 17 December 2020 the first respondents filed an amended defence essentially abandoning any positive case against the relief sought by the applicant stating that they would abide the order of the court save as to costs. They also abandoned their counterclaim. In undertaking his decision, Mr Robinson determined that the fairest way to construe the costs order was to do three things:(a)First: To assess the applicant’s costs of paragraph one of the originating application attributable to the first respondents only;(b)Secondly: To assess the applicant’s costs of paragraph one of the originating application attributable to both respondents and then to apportion those costs 50 per cent to each respondent; and (c)Thirdly: To effectively direct that the applicant deliver a costs statement for its costs of the proceeding with the applicant’s costs of paragraph one of the originating application (he had assessed as payable by the first respondent) carved out. The issue for my determination is whether Mr Robinson’s decision is manifestly wrong. With respect and for the reasons that follow, I find that it is.Relevant Legal Principles The starting point is UCPR r 742, which relevantly states as follows: “742 Review by court(1) A party dissatisfied with a decision included in a costs assessor’s certificate of assessment may apply to the court to review the decision.(2) ……(3) ……(4) The applicant must serve a copy of the application on all other parties to the assessment within 14 days after the application is filed.(5) On a review, unless the court directs otherwise—(a) the court may not receive further evidence; and(b)a party may not raise any ground of objection not stated in the application for assessment or a notice of objection or raised before the costs assessor.(6) Subject to subrule (5), on the review, the court may do any of the following—(a)exercise all the powers of the costs assessor in relation to the assessment;(b) set aside or vary the decision of the costs assessor;(c) set aside or vary an order made under rule 740 (1);(d)refer any item to the costs assessor for reconsideration, with or without directions;(e)make any other order or give any other direction the court considers appropriate.(7) Unless the court orders otherwise, the application for review does not operate as a stay of the registrar’s order.”

Ratio Decidendi

Legal Principle Established

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