Cowley and Cowley v Bellamy and River Trade Pty Ltd (No 2)

[2012] QDC 366

DISTRICT COURT OF QUEENSLAND

CITATION:

Cowley and Cowley v Bellamy & River Trade Pty Ltd (No 2) [2012] QDC 366

PARTIES:

JENNIFER COWLEY & MARTIN COWLEY
(Plaintiffs)

AND

KEITH BELLAMY & RIVER TRADE PTY LTD
(Defendants)

FILE NO/S:

933/2010

DELIVERED ON:

14 December 2012

DELIVERED AT:

Brisbane

JUDGE:

Samios DCJ

ORDER:

1.   Plaintiffs’ pay the first defendant’s costs of the proceedings to be assessed on the standard basis. There is no basis to order the plaintiffs to pay the first defendant’s costs on an indemnity basis.

2.    As to the costs reserved by Judge Farr on the 3^rd of May 2012, there should be no order as to the costs thrown away.

3.   The second defendant pay the plaintiffs’ costs of the proceedings on an indemnity basis.

COUNSEL:

D Kelly appeared for the plaintiff.

K Bellamy represented himself as 1^st defendant.

The second defendant was not represented.

SOLICITORS:

Rodgers Barnes & Green for the plaintiff.

K Bellamy represented himself as first defendant.

The second defendant was not represented.

1. In this matter, I order the plaintiffs' claim against the first defendant is dismissed.

2. I also order that there be judgment for the plaintiffs against the second defendant for $137,258.05 and I publish my reasons.

3. HIS HONOUR:  In this matter, the question of costs arises to be determined.

4. I have come to the view that as the first defendant was successful in the defence of the plaintiffs' claim, costs should follow the event. Therefore I order the plaintiffs pay the first defendant's costs of the proceedings to be assessed on the standard basis.  There is no basis to order the plaintiffs to pay the first defendant's costs on an indemnity basis.

5. As to the costs reserved by his Honour, Judge Farr, on the 3rd of May 2012, I have come to the view that the principal reason for his Honour not hearing the matter was his view that the matter would take four days rather than the two days that had been allowed for the trial.

6. It is unfortunate that as events turned out, the matter was able to be determined in two days.  However, as it looked to his Honour, Judge Farr, no doubt, and it looked to me when the matter commenced, it had every hallmark of a four day trial.

7. In these circumstances, I have come to the view that as to the costs reserved by Judge Farr on the 3rd of May 2012, there should be on order as to the costs thrown away.

8. As to the costs between the plaintiffs and the second defendant, the plaintiff gave an offer to settle to the second defendant.  That occurred on two occasions, as the affidavit of Mr Lio shows.  The plaintiffs have been successful over and above the offer to settle, and therefore should have their indemnity costs in relation to the proceedings.

9. Therefore I order the second defendant pay the plaintiffs' costs of the proceedings on an indemnity basis.