De Pasquale v Deppeler (No. 2) - [2011] QDC 136

DISTRICT COURT OF QUEENSLAND

CITATION:

De Pasquale & Ors v Deppeler & Anor (No. 2) [2011] QDC 136

PARTIES:

RALPH PETER DE PASQUALE, FRANCESCO ANTONIO DE PASQUALE, ANTONIO RAFFAELE DE PASQUALE AND ALESSANDRO SIMONE DE PASQUALE
(Plaintiffs)

V

RAYMOND MAXWELL DEPPELER
(First Defendant)

AND

MICHAEL SLOBE
(Second Defendant)

FILE NO/S:

D1558/2010

PROCEEDING:

Civil – Application for cost on an indemnity basis

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

22 July 2011

DELIVERED AT:

Brisbane

HEARING DATE:

23 June 2011

JUDGE:

Jones DCJ

ORDER:

The plaintiff pay the first defendant’s costs of and incidental to the proceeding on the standard basis

CATCHWORDS:

COSTS – COSTS ON AN INDEMNITY BASIS – Where defendants entirely successful in defending the plaintiff’s claims against them –whether an Order for costs on indemnity basis ought be made in favour of the first defendant in circumstances where (i) he was entirely successful in defending the action (ii) that offers to settle were made on his behalf – whether other circumstances justifying costs on an indemnity basis exist

Rule 361 Uniform Civil Procedure Rules

De Pasquale & Ors v Deppeler & Anor [2011] QDC 117

Emanuel Management Pty Ltd (in liquidation) & Ors v Foster Brewing Group Ltd & Ors [2003] QSC 299

Turrisi Properties Pty Ltd v LJ and BJ Investments Pty Ltd; Turrisi Properties Pty Ltd v B McVicar; Turrisi Properties Pty Ltd v Mulcahy [2010] QSC 349

Rathie v ING Life [2004] QSC 146

COUNSEL:

Mr M Wilson on behalf of the plaintiffs

Mr D Bowles, solicitor for the first defendant

No appearance by the second defendant

SOLICITORS:

Porta Lawyers on behalf of the plaintiffs

The Law Place Solicitors on behalf of the first defendant

No appearance by the second defendant

This proceeding is concerned with an application made on behalf of the first defendant for a costs order against the plaintiffs on an indemnity basis. For the reasons set out below, that application is refused and the order of the court will be that the plaintiffs pay the first defendant’s cost of and incidental to the proceeding on the standard basis.

At all material times the second defendant acted on his own behalf. He did not appear on 23 June 2011 when the substantive decision in this matter was handed down. Consequently no application for costs was made on his behalf. No cost orders will be made against the plaintiffs in respect of the second defendant.

Background

The plaintiffs sued the first and second defendants seeking financial relief which the plaintiffs alleged was due and owing to them under certain guarantees. On 2 June 2011 I dismissed the plaintiff’s claim against both defendants.[1] In essence, the defendants avoided liability on the basis that their liability under guarantees did not extend to include any breaches by the tenant under the subject lease in circumstances where the tenant and the plaintiffs had entered into a new and discreet lease.[2]
[1]De Pasquale & Ors v Deppeler & Anor [2011] QDC 117
[2]De Pasquale

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 De Pasquale v Deppeler (No. 2)

Details

AGLC: De Pasquale v Deppeler (No. 2) [2011] QDC 136
Case: [2011] QDC 136
Decision Date: 22 July 2011

CaseChat Overview and Summary

De Pasquale v Deppeler (No. 2) is a case where the plaintiff, De Pasquale, sued the defendants, Deppeler and others, over certain issues. The case was heard in a court in Australia. The plaintiff argued that the defendants did not properly carry out their duties, but the defendants successfully defended against these claims. The court had to decide if the first defendant, Deppeler, should receive special costs called "costs on an indemnity basis." This type of cost means the losing party has to pay the winning party’s legal fees, which can be much higher than usual. The court considered if Deppeler was entirely successful in defending the claims and if there were other reasons to award these special costs.

The court examined the circumstances and found that Deppeler was indeed entirely successful in defending the claims, and that offers to settle were made on his behalf. However, the court also considered if there were any other special reasons that would justify awarding costs on an indemnity basis. After reviewing all the evidence and arguments, the court decided that there were no such reasons. Therefore, the court ruled that Deppeler should only receive the usual costs, called "costs on the standard basis," which means the losing party pays the winning party’s normal legal fees.

As a result of the court's decision, the final order was that De Pasquale, the plaintiff, must pay the first defendant, Deppeler, the costs of and incidental to the proceeding on the standard basis. This means De Pasquale has to cover Deppeler’s regular legal expenses, not the higher indemnity costs. This outcome reflects the court’s finding that while Deppeler successfully defended the claims, there were no special circumstances that warranted the higher indemnity costs.

Orders

Orders of the court

The plaintiff pay the first defendant’s costs of and incidental to the proceeding on the standard basis

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	De Pasquale & Ors v Deppeler & Anor (No. 2) [2011] QDC 136
PARTIES:	RALPH PETER DE PASQUALE, FRANCESCO ANTONIO DE PASQUALE, ANTONIO RAFFAELE DE PASQUALE AND ALESSANDRO SIMONE DE PASQUALE (Plaintiffs) V RAYMOND MAXWELL DEPPELER (First Defendant) AND MICHAEL SLOBE (Second Defendant)
FILE NO/S:	D1558/2010
PROCEEDING:	Civil – Application for cost on an indemnity basis
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	22 July 2011
DELIVERED AT:	Brisbane
HEARING DATE:	23 June 2011
JUDGE:	Jones DCJ
ORDER:	The plaintiff pay the first defendant’s costs of and incidental to the proceeding on the standard basis
CATCHWORDS:	COSTS – COSTS ON AN INDEMNITY BASIS – Where defendants entirely successful in defending the plaintiff’s claims against them –whether an Order for costs on indemnity basis ought be made in favour of the first defendant in circumstances where (i) he was entirely successful in defending the action (ii) that offers to settle were made on his behalf – whether other circumstances justifying costs on an indemnity basis exist Rule 361 Uniform Civil Procedure Rules De Pasquale & Ors v Deppeler & Anor [2011] QDC 117 Emanuel Management Pty Ltd (in liquidation) & Ors v Foster Brewing Group Ltd & Ors [2003] QSC 299 Turrisi Properties Pty Ltd v LJ and BJ Investments Pty Ltd; Turrisi Properties Pty Ltd v B McVicar; Turrisi Properties Pty Ltd v Mulcahy [2010] QSC 349 Rathie v ING Life [2004] QSC 146
COUNSEL:	Mr M Wilson on behalf of the plaintiffs Mr D Bowles, solicitor for the first defendant No appearance by the second defendant
SOLICITORS:	Porta Lawyers on behalf of the plaintiffs The Law Place Solicitors on behalf of the first defendant No appearance by the second defendant