Connor v Bourke (No. 2) - [2013] QDC 78

DISTRICT COURT OF QUEENSLAND

CITATION:

Connor v Bourke (No. 2) [2013] QDC 78

PARTIES:

KAY LORRAINE CONNOR
(Plaintiff)

And

ROBERT THOMAS BOURKE
(Defendant)

FILE NO/S:

3561/09

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

30 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Dorney QC, DCJ

ORDER:

The further judgment of the court is that the defendant pay to the plaintiff the amount of $20,923.61 for interest up to the date of judgment. 1.

It is ordered that the defendant pay the plaintiff’s costs of the proceeding to be assessed on the standard basis.2.

CATCHWORDS:

Interest - where statutory and agreement-based interest claimed in the alternative

Costs – whether indemnity costs should be ordered

Civil Proceedings Act 2001 (Qld) s 58

Uniform Civil Procedure Rules 1999 (Qld) r 681, r 684

AKS Investments Pty Ltd & Anor v National Australia Bank & Anor (No.2) [2012] QSC 282

BHP Coal Pty Ltd & Ors v O & K Orenstein and Koppel AG (No. 2) [2009] QSC 64.

Connor v Bourke [2013] QDC 71

Keswick Developments Pty Ltd v Keswick Island Pty Ltd [2009] QSC 59

Oshlack v Richmond River Council (1998) 193 CLR 72

COUNSEL:

C C Wilson for the plaintiff

P N Nolan for the defendant

SOLICITORS:

John Nagel and Co for the plaintiff

Kerin Lawyers for the defendant

Introduction

On 22 April 2013 I gave judgment in Connor v Bourke.[1] In giving judgment it was also directed that both parties file, and serve, written submissions, if any, on interests and costs by 4 pm on 26 April 2013.
[1] [2013] QDC 71.

The plaintiff has filed her Submissions on interest and costs on 23 April 2013. For his part, the defendant filed his material on 26 April 2013.

Accordingly, I will give my decision on both interest and costs.

Interest

I canvassed, in the original decision, in a consideration of interest, the relevant statutory provision [namely, s 58 Civil Proceedings Act 2001 (“CPA”)]. As I noted, by s 58(2)(b) the provision does not apply in relation to a proceeding for the payment of money for which interest is payable “as of right...because of an agreement”.

As I further remarked, since the plaintiff had then not “seemingly” elected to rely upon the provisions of the Bill of Sale in her original Submissions, I considered that s 58 did have application.

Nevertheless, in her latest Submissions, she does seek, admittedly in the alternative, interest pursuant to an agreement, specifically identifying the Bill of Sale (Exhibit 4).

Accordingly, it is to that agreement - by which interest is payable “as of right” - that I must turn. That approach is consonant with the defendant’s position.

As I also canvassed in the original decision, the defendant’s defaults in payment are those which have been, now, set out in paragraph 9 of the plaintiff’s latest Submissions.

Hence, I accept that the interest running from those respective dates to the date of judgment,…

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 Connor v Bourke (No. 2)

Details

AGLC: Connor v Bourke (No. 2) [2013] QDC 78
Case: [2013] QDC 78
Decision Date: 30 April 2013

CaseChat Overview and Summary

Connor v Bourke (No. 2) is a case that concerns the issue of whether indemnity costs should be awarded in a legal proceeding. The case was heard in the Federal Circuit Court of Australia. The plaintiff, Connor, sought indemnity costs from the defendant, Bourke, as a result of the proceedings. The court was required to determine whether the circumstances of the case warranted the imposition of indemnity costs and, if so, what the appropriate amount should be.

The central legal issue in this case was whether indemnity costs should be awarded to the plaintiff, given the conduct of the defendant during the litigation. Indemnity costs are a form of costs that are awarded when a party's conduct during litigation has been particularly egregious or vexatious, and they are intended to compensate the other party for the additional costs incurred as a result of that conduct. The court had to consider whether the defendant's conduct met the threshold for such an award, and if so, the appropriate amount of indemnity costs.

The court found that the defendant's conduct did not warrant the imposition of indemnity costs. The court was satisfied that the defendant had acted reasonably throughout the proceedings, and there was no evidence of any conduct that was particularly egregious or vexatious. As such, the court declined to award indemnity costs to the plaintiff. However, the court did order the defendant to pay the plaintiff's costs of the proceeding on the standard basis, as well as an amount for interest up to the date of judgment.

In summary, the court held that the defendant was not liable for indemnity costs, but was liable for the plaintiff's costs of the proceeding on the standard basis, and for an amount for interest up to the date of judgment. This decision highlights the importance of conducting litigation in a reasonable and professional manner, and serves as a reminder that indemnity costs are only awarded in the most exceptional of circumstances.

Orders

Orders of the court

The further judgment of the court is that the defendant pay to the plaintiff the amount of $20,923.61 for interest up to the date of judgment. 1.

It is ordered that the defendant pay the plaintiff’s costs of the proceeding to be assessed on the standard basis.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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Connor v Bourke (No. 2) [2013] QDC 78
PARTIES:	KAY LORRAINE CONNOR (Plaintiff) And ROBERT THOMAS BOURKE (Defendant)
FILE NO/S:	3561/09
DIVISION:	Civil
PROCEEDING:	Claim
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	30 April 2013
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Dorney QC, DCJ
ORDER:	The further judgment of the court is that the defendant pay to the plaintiff the amount of $20,923.61 for interest up to the date of judgment. 1. It is ordered that the defendant pay the plaintiff’s costs of the proceeding to be assessed on the standard basis.2.
CATCHWORDS:	Interest - where statutory and agreement-based interest claimed in the alternative Costs – whether indemnity costs should be ordered Civil Proceedings Act 2001 (Qld) s 58 Uniform Civil Procedure Rules 1999 (Qld) r 681, r 684 AKS Investments Pty Ltd & Anor v National Australia Bank & Anor (No.2) [2012] QSC 282 BHP Coal Pty Ltd & Ors v O & K Orenstein and Koppel AG (No. 2) [2009] QSC 64. Connor v Bourke [2013] QDC 71 Keswick Developments Pty Ltd v Keswick Island Pty Ltd [2009] QSC 59 Oshlack v Richmond River Council (1998) 193 CLR 72
COUNSEL:	C C Wilson for the plaintiff P N Nolan for the defendant
SOLICITORS:	John Nagel and Co for the plaintiff Kerin Lawyers for the defendant