Cowley v Murphy (No 2)

[2020] QDC 259

DISTRICT COURT OF QUEENSLAND

CITATION:

Cowley v Murphy (No 2) [2020] QDC 259

PARTIES:

GRAEME CHARLES COWLEY

(plaintiff/respondent)

v

JOHN MURPHY and JENNIFER STORY

(defendants/applicants)

FILE NO/S:

4162/19

DIVISION:

Civil

PROCEEDING:

Application

DELIVERED ON:

12 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

Decision on the papers

JUDGE:

Barlow QC DCJ

ORDER:

1.   The defendants pay the plaintiff’s costs of the defendants’ application filed on 18 August 2020.

2.   The costs of the plaintiff’s application filed on 18 August 2020 be reserved.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – POWER TO ORDER – defendants’ application dismissed – plaintiff seeks costs of the application on the indemnity basis – whether costs should be ordered and, if so, whether on the indemnity basis

COUNSEL:

DA Skennar QC and M Brooks for the plaintiff/respondent

MK Stunden for the defendants/applicants

SOLICITORS:

Australian Property Lawyers for the plaintiff/respondent

Barry.Nilsson. Lawyers for the defendants/applicants

1. On 18 September 2020 I delivered judgment on the defendants’ application for summary judgment, dismissing the application.[1]  I made directions for written submissions on the costs of the application.  I subsequently received those submissions.

   [1]Cowley v Murphy [2020] QDC 231.

2. The defendants sought summary judgment on the basis that the issues raised by the plaintiff in this proceeding had been dealt with by the Supreme Court in another proceeding and were therefore the subject of an issue estoppel.

3. The plaintiff opposed the application on a number of grounds, including that they were not parties to the earlier proceeding and that the earlier decision was not final and therefore could not raise an issue estoppel.  On each of those contentions I found for the defendant.  However, I agreed with the plaintiff’s contention that the issues in the earlier proceeding were different to those raised in this proceeding, so there is no issue estoppel preventing the plaintiff from making his claims in this proceeding.

4. The plaintiff now seeks his costs of the application on the indemnity basis.  He contends that, in multiple letters from his solicitors to the defendants’ solicitors, both before and after the application was filed, his solicitors explained why there was no issue estoppel, but the defendants proceeded with their application in any event.  That was unreasonable, as the application had no real prospects of success.  Therefore it is appropriate to award costs on the indemnity basis.  Alternatively, costs should be awarded on the standard basis.

5. The defendants contend that there should be no order for the costs of the application.  Alternatively, costs should be only on the standard basis.  They contend that they were successful on two of the three issues raised by the plaintiff.  I understand them to contend that that is why there should be no order for costs.  Further, the application was not bound to fail, so it was not unreasonable for them to have made it and indemnity costs are not justified. 

6. In my view, while the defendants failed in their application, it was not hopeless or bound to fail.  Their application was arguable.  There is nothing to justify an order for indemnity costs.  On the other hand, they failed and there is no reason why the plaintiff should not have his standard costs of the application.

7. The defendants submit that the plaintiff’s costs should be limited to those of junior counsel and one instructor.  In my view, whether it was reasonable for the plaintiff to instruct two counsel is a matter for an assessor, if the parties cannot agree.  I decline to make any specific order in that regard.

8. On the last occasion, I also adjourned an application by the plaintiff to a date to be fixed.  The defendants have now made submissions on that application, while the plaintiff’s counsel made written submissions on that occasion.  The application concerns further disclosure by the defendants and orders for mediation.  The defendants appear to concede that they have further disclosure to make and to agree to a mediation.  They contend that they were always willing to undertake those steps once their application for summary judgment had been determined.  They and the plaintiff have proposed draft orders that do not quite match each other.

9. The parties are represented by experienced and competent solicitors and counsel.  They should be able to agree on those steps, including mediation.  I do not consider it necessary to make any directions on those matters at this stage.  The plaintiff’s application can remain adjourned to a date to be fixed and may be heard if necessary by making arrangements to list it in the applications list.  In the meantime, I shall expressly reserve the costs of that application.