D.M. Wright and Associates v Murrell (No 3) - [2021] QDC 167

DISTRICT COURT OF QUEENSLAND

CITATION:

D.M. Wright & Associates v Murrell (No 3) [2021] QDC 167

PARTIES:

D.M. WRIGHT & ASSOCIATES
(Appellant)

v

MURRELL

(Respondent)

FILE NOS:

BD 2586/2020

DIVISION:

Appeals

DELIVERED ON:

5 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

29 March 2021, 17 May 2021 (and additional written submissions, 23 July 2021 and 30 July 2021)

JUDGE:

Barlow QC DCJ

ORDERS:

1    Each party bear his or her own costs of the appeal.

2    Proceeding M454 of 2017 in the Magistrates Court at Brisbane (the “Magistrates Court proceeding”) be transferred to this Court (the “transfer”) and the following directions apply in that proceeding after the transfer has been completed.

3    A copy of this order be placed on the court file in the Magistrates Court proceeding.

4    The application for judgment filed on 27 February 2019 in the Magistrates Court proceeding, including the respondent’s application for interest, be listed for hearing and determination on the papers before Judge Barlow QC on a date to be fixed.

5    The respondent, within 7 days of being informed of the transfer, as applicant in the Magistrates Court proceeding file and serve any further affidavits and written submissions on which he relies in support of that application and email a copy of those documents to the associate for Judge Barlow QC.

6    The appellant, within 14 days of being informed of the transfer, as respondent in the Magistrates Court proceeding file and serve any affidavits and written submissions on which she relies in respect of that application and email a copy of those documents to the associate for Judge Barlow QC.

7    The respondent, within 21 days of being informed of the transfer, as applicant in the Magistrates Court proceeding file and serve any written submission in reply and email a copy of that document to the associate for Judge Barlow QC.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – PARTIAL SUCCESS – appellant appealed decision of magistrate for a review of a costs assessment – appellant failed on first part of appeal but was partially successful on second part – whether general rule that costs follow the event should be applied.

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – INTEREST ON JUDGMENTS – GENERALLY – respondent applied for costs assessment in the Magistrates Court – costs reduced on assessment – respondent applied in same Magistrates Court proceeding for judgment, including interest, on the certificate of the assessment – whether respondent entitled to pre-judgment interest pursuant to s 58 of Civil Proceedings Act 2011.

COURTS AND JUDGES – COURTS – JURISDICTION AND POWERS – TRANSFER OF PROCEEDINGS TO OR FROM HIGHER COURTS AND BETWEEN COURTS – TO HIGHER COURT – application for judgment in Magistrates Court adjourned pending determination of appeal – appeal has been heard and finalised – whether to transfer whole proceeding to this court for final determination of that application.

Civil Proceedings…

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 D.M. Wright and Associates v Murrell (No 3)

Details

AGLC: D.M. Wright and Associates v Murrell (No 3) [2021] QDC 167
Case: [2021] QDC 167
Decision Date: 5 August 2021

CaseChat Overview and Summary

The matter of D.M. Wright and Associates v Murrell (No 3) involved the appellant, D.M. Wright and Associates, appealing a decision of the magistrate concerning a costs assessment. The respondent, Murrell, had previously applied for costs in the Magistrates Court, which were reduced upon assessment. The respondent then applied for a judgment, including interest, on the certificate of the assessment. The appellant contested the entitlement of the respondent to pre-judgment interest pursuant to section 58 of the Civil Proceedings Act 2011.

The court was required to determine whether the general rule that costs follow the event applied, given the appellant's partial success on appeal. Additionally, the court needed to decide whether the respondent was entitled to pre-judgment interest under the Civil Proceedings Act 2011. Finally, the court had to consider whether the whole proceeding should be transferred to the higher court for the final determination of the application for judgment.

The court found that each party should bear their own costs of the appeal. It ruled that the proceeding should be transferred to the higher court for final determination of the application for judgment. The application for judgment filed on 27 February 2019, including the respondent's application for interest, was to be listed for hearing and determination on the papers before Judge Barlow QC. The court provided specific directions for the parties to file and serve any further affidavits, written submissions, and replies within prescribed timeframes.

Orders

Orders of the court

1 Each party bear his or her own costs of the appeal.

2 Proceeding M454 of 2017 in the Magistrates Court at Brisbane (the “Magistrates Court proceeding”) be transferred to this Court (the “transfer”) and the following directions apply in that proceeding after the transfer has been completed.

3 A copy of this order be placed on the court file in the Magistrates Court proceeding.

4 The application for judgment filed on 27 February 2019 in the Magistrates Court proceeding, including the respondent’s application for interest, be listed for hearing and determination on the papers before Judge Barlow QC on a date to be fixed.

5 The respondent, within 7 days of being informed of the transfer, as applicant in the Magistrates Court proceeding file and serve any further affidavits and written submissions on which he relies in support of that application and email a copy of those documents to the associate for Judge Barlow QC.

6 The appellant, within 14 days of being informed of the transfer, as respondent in the Magistrates Court proceeding file and serve any affidavits and written submissions on which she relies in respect of that application and email a copy of those documents to the associate for Judge Barlow QC.

7 The respondent, within 21 days of being informed of the transfer, as applicant in the Magistrates Court proceeding file and serve any written submission in reply and email a copy of that document to the associate for Judge Barlow QC.

Background

Background to the litigation

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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

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CITATION:	D.M. Wright & Associates v Murrell (No 3) [2021] QDC 167
PARTIES:	D.M. WRIGHT & ASSOCIATES (Appellant)
v
MURRELL (Respondent)
FILE NOS:	BD 2586/2020
DIVISION:	Appeals
DELIVERED ON:	5 August 2021
DELIVERED AT:	Brisbane
HEARING DATE:	29 March 2021, 17 May 2021 (and additional written submissions, 23 July 2021 and 30 July 2021)
JUDGE:	Barlow QC DCJ
ORDERS:	1 Each party bear his or her own costs of the appeal. 2 Proceeding M454 of 2017 in the Magistrates Court at Brisbane (the “Magistrates Court proceeding”) be transferred to this Court (the “transfer”) and the following directions apply in that proceeding after the transfer has been completed. 3 A copy of this order be placed on the court file in the Magistrates Court proceeding. 4 The application for judgment filed on 27 February 2019 in the Magistrates Court proceeding, including the respondent’s application for interest, be listed for hearing and determination on the papers before Judge Barlow QC on a date to be fixed. 5 The respondent, within 7 days of being informed of the transfer, as applicant in the Magistrates Court proceeding file and serve any further affidavits and written submissions on which he relies in support of that application and email a copy of those documents to the associate for Judge Barlow QC. 6 The appellant, within 14 days of being informed of the transfer, as respondent in the Magistrates Court proceeding file and serve any affidavits and written submissions on which she relies in respect of that application and email a copy of those documents to the associate for Judge Barlow QC. 7 The respondent, within 21 days of being informed of the transfer, as applicant in the Magistrates Court proceeding file and serve any written submission in reply and email a copy of that document to the associate for Judge Barlow QC.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – PARTIAL SUCCESS – appellant appealed decision of magistrate for a review of a costs assessment – appellant failed on first part of appeal but was partially successful on second part – whether general rule that costs follow the event should be applied. PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – INTEREST ON JUDGMENTS – GENERALLY – respondent applied for costs assessment in the Magistrates Court – costs reduced on assessment – respondent applied in same Magistrates Court proceeding for judgment, including interest, on the certificate of the assessment – whether respondent entitled to pre-judgment interest pursuant to s 58 of Civil Proceedings Act 2011. COURTS AND JUDGES – COURTS – JURISDICTION AND POWERS – TRANSFER OF PROCEEDINGS TO OR FROM HIGHER COURTS AND BETWEEN COURTS – TO HIGHER COURT – application for judgment in Magistrates Court adjourned pending determination of appeal – appeal has been heard and finalised – whether to transfer whole proceeding to this court for final determination of that application. Civil Proceedings…