Fick v Groves (No 2)

[2010] QSC 182

SUPREME COURT OF QUEENSLAND

CITATION:

Fick v Groves (No 2) [2010] QSC 182

PARTIES:

ANTONNE JUSTIN FICK AND LENCHEN MARY FICK
(plaintiff)
v
JOHN LESLIE GROVES AND LESLEY VIVIENNE GROVES
(defendant)

FILE NO:

BS 5308 of 2005

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

28 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions of the defendants dated 23 April 2010, written submissions of the plaintiffs dated 11 May 2010, response by the defendants dated 12 May 2010.

JUDGE:

Applegarth J

ORDERS:

The plaintiffs pay the defendants’ costs of and incidental to the proceeding, including reserved costs, to be assessed:

(a)     on a standard basis up to and including 30 June 2006;

(b)    on an indemnity basis thereafter.

CATCHWORDS:

PROCEDURE – COSTS – INDEMNITY COSTS – where plaintiffs’ claim for substantial damages dismissed – whether proceedings commenced or continued without proper foundation – whether allegations made by plaintiffs contrary to known facts – whether undue prolongation of the case by the plaintiffs in breach of their implied undertaking under UCPR 5 – whether imprudent refusal of an offer to compromise

LEGISLATION: 

Uniform Civil Procedure Rules, 1999, r 5

CASES: 

Colgate-Palmolive Company v Cussons Pty Ltd(1993) 46 FCR 225 - cited
Fick v Groves [2010] QSC 89 - cited
Hazeldene’s Chicken Farm Pty Ltd v Victorian Work Cover Authority (No. 2) (2005) 13 VR 435 at 442 - followed
Joelco Pty Ltd v Balance Securities Limited [2009] QSC 304 - cited
Palmer & Anor v Finnigan [2010] QSC 86 - cited
Paroz v Paroz [2010] QSC 157 - cited
Nolan v Nolan (No. 2) [2003] VSC 136 - cited
Thiess Pty Ltd v FLSMIDTH Minerals Pty Ltd (No. 2) [2010] QSC 120 - followed
Todrell Pty Ltd v Finch (No. 2) [2008] 2 Qd R 95 at 96 - cited

COUNSEL:

N M Cooke for the plaintiffs
M K Conrick for the defendants

SOLICITORS:

Norton Rose Australia
Neilson Stanton Parkinson

1. On 30 March 2010 I gave judgment for the defendants and, subject to further submissions on costs and security for costs, ordered that the plaintiffs pay the defendants’ costs of the proceeding, including reserved costs, to be assessed.[1]  The parties have since filed written submissions.  The defendants seek an order that the costs awarded to them be assessed on an indemnity basis.  The defendants’ submissions state that the application is founded on the following four bases:

   [1]Fick v Groves [2010] QSC 89.

“The first is the institution of proceedings without any proper foundation.

The second is the subsequent maintenance of the proceedings in the face of overwhelming and uncontradicted evidence demonstrating the absence of any substantive foundation for the allegations made in the proceedings.

The third, which in the circumstances of these proceedings to some extent overlaps with the first and second, is the failure to conduct proceedings so as to facilitate the just and expeditions (sic) resolution of the real issues at a minimum of expense in breach of UCPR r.5.