Eyears v Peter Zufic as trustee for the Peter and Tanya Zufic Family Trust

[2016] QCA 109

SUPREME COURT OF QUEENSLAND

CITATION:

Eyears v Peter Zufic as trustee for the Peter and Tanya Zufic Family Trust [2016] QCA 109

PARTIES:

MARINA EYEARS
(applicant)
v
PETER ZUFIC as trustee for the PETER AND TANYA ZUFIC FAMILY TRUST trading as CLIENTCARE SOLICITORS
(respondent)

FILE NOS:

Appeal No 3211 of 2015
DC No 2535 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil) – Further Order
Application for Extension of Time s 118 DCA (Civil) – Further Order

ORIGINATING COURT:

District Court at Brisbane – Unreported, 27 November 2014

DELIVERED ON:

26 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Holmes CJ and Ann Lyons and Applegarth JJ
Judgment of the Court

ORDER:

The applicant pay the respondent’s costs of and incidental to the application for leave to appeal and the application for an extension of time in which to apply for leave to appeal.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE: COSTS FOLLOW THE EVENT – INDEMNITY COSTS – PARTICULAR CASES – HOPELESS CASES – UNREASONABLE CONDUCT OR DELINQUENCY RELATING TO PROCEEDINGS – where applicant wholly unsuccessful on application for leave to appeal to Court of Appeal – where respondent submitted applicant had pursued a hopeless case and made serious and unsubstantiated allegations about the respondent and its counsel – whether there is any reason to depart from the ordinary rule that costs follow the event – whether indemnity costs should be awarded

Eyears v Zufic[2016] QCA 40, cited

COUNSEL:

No appearance by the applicant, the applicant’s submissions were heard on the papers
No appearance by the respondent, the respondent’s submissions were heard on the papers

SOLICITORS:

No appearance for the applicant
No appearance for the respondent

1. THE COURT:  On 26 February 2016, this Court delivered judgment in Eyears v Zufic [2016] QCA 40, refusing the applicant’s application for leave to appeal and application for an extension of time in which to apply for leave.

2. The Court held that the substantive application was without merit and that no errors had been shown warranting this Court’s intervention.

3. The parties were afforded the opportunity to deliver submissions on costs.  The respondent submits that there is no reason or special circumstance to justify departure from the ordinary rule that costs should follow the event.

4. The applicant’s submissions seek to agitate issues about the respondent’s conduct which were considered by the District Court Judge or considered by this Court in determining her application for leave to appeal.  She should not be permitted to agitate issues which were, or could have been, the subject of submissions to this Court.  She raises the disadvantage which she felt in confining her Outline of Argument to ten pages, and the disadvantage which she felt in making oral submissions to this Court as a self-represented litigant.  However, the applicant’s arguments were heard on their merits.  Next, the applicant says that the respondent has provided no evidence of his financial circumstances, whereas her financial position has been the subject of evidence in the proceedings.  The relative financial circumstances of the parties is not a sufficient reason in this case to depart from the ordinary rule that costs follow the event.

5. In our view, there is no reason to depart from the ordinary rule.  The applicant was wholly unsuccessful and the respondent, having been put to the expense of having to respond to the applications, ought to have his costs.

6. The respondent further submits that there is reason for the applicant to pay the respondent’s costs on the indemnity basis on the grounds that the applicant’s pursuit of her application to this Court was hopeless, was a waste of the Court’s time and resources and involved serious and unsubstantiated allegations about the respondent, and the respondent’s then counsel appearing before the District Court.  The applicant’s unmeritorious application before this Court is said to have caused further delay and financial hardship to the respondent.

7. It is well-established that wholly unreasonable conduct, such as pursuing a proceeding which is known to be hopeless, may justify an order that costs be assessed on an indemnity basis.  However, we are not satisfied that this is such an exceptional case that the order for costs should be on the indemnity basis.

8. The order for costs will be:

   The applicant pay the respondent’s costs of and incidental to the application for leave to appeal and the application for an extension of time in which to apply for leave to appeal.