Glenwood Homes P/L v Eberhard - [2008] QSC 192

SUPREME COURT OF QUEENSLAND

CITATION:

Glenwood Homes P/L v Eberhard & Ors [2008] QSC 192

PARTIES:

GLENWOOD HOMES PTY LTD (ACN 010 930 284)
(plaintiff)
v
GEOFFREY EBERHARD
(first defendant)
JOHN ANDERSON
(second defendant)
ANTHONY NEWTON
(third defendant)
BEXALAW PTY LTD (ACN 075 575 209)
(third party)
GLENWOOD HOMES PTY LTD (ACN 010 930 284)
(fourth party)

FILE NO/S:

BS3006 of 2004

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2008

JUDGE:

Dutney J

ORDER:

That Graham John Robinson be appointed as costs assessor to make a default assessment of the costs payable by the second defendant to the plaintiff pursuant to the order of the Honourable Justice Byrne made 4 June 2008.

CATCHWORDS:

PROCEDURE – COSTS – RECOVERY OF COSTS – where application by plaintiff under r 708 of the Uniform Civil Procedure Rules – where originally ordered that defendants and the third party pay the plaintiffs costs of the application – where parties against whom the order was made were represented by a single firm of solicitors – where cost statement served – where first and third defendants and the third party filed notice of objection – where plaintiff seeks default costs assessment pursuant to r 708 – whether first and third defendants jointly and severally liable for default costs assessment made against second defendant

Uniform Civil Procedure Rules, r 708
Baxter v Obacelo Pty Ltd (2001) 205 CLR 635, referred to
Probiotec Ltd v The University of Melbourne [2008] FCAFC 5, referred to
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574, referred to

COUNSEL:

T Matthews for the plaintiff
No appearance for the defendants, third and fourth parties

SOLICITORS:

Boulton Cleary & Kern for the plaintiff
No appearance for the defendants, third and fourth parties

The plaintiff in the action filed an application under r 708 of the Uniform Civil Procedure Rules (“UCPR”) seeking a default costs assessment against the second defendant.

On 4 June 2008 Byrne SJA made an order that the defendants and the third party pay the plaintiffs costs of the application before him to be assessed on the standard basis. A cost statement was prepared and served on the three defendants at their address for service on 10 June 2008. Under rule 706 of the UCPR, any objections by the parties liable to pay the costs were required to be filed and served on or before 1 July 2008.

On 24 June 2008 the first and third defendants and the third party filed a notice of change of solicitor and on the following day the plaintiff’s solicitor received a notice of objection to the plaintiff’s costs statement on behalf of those parties.

No objection has been received from the second defendant whose solicitors on the record remain Holding Redlich. Despite the address for service, the second defendant is now unrepresented.

On 3 July 2008 the application for default assessment pursuant…

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.

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Details

Case: [2008] QSC 192
Decision Date: 28 August 2008

CaseChat Overview and Summary

In the matter of Glenwood Homes P/L v Eberhard, the case was heard in the Supreme Court of New South Wales. The primary dispute concerned the recovery of costs under rule 708 of the Uniform Civil Procedure Rules. Glenwood Homes P/L, the plaintiff, had originally been granted an order that the defendants and a third party should bear the costs of their application. The defendants and the third party, represented by a single law firm, subsequently filed objections to the cost statement served by the plaintiff. In response, the plaintiff sought a default costs assessment against the second defendant, raising the issue of whether the first and third defendants, who were jointly represented, could also be held liable for the default costs assessment.

The court was tasked with determining the extent of liability for the costs incurred by the second defendant. Specifically, it had to consider whether the first and third defendants, represented by the same legal team, could be held jointly and severally liable for the costs assessed against the second defendant. The court examined the procedural context, including the representation of the defendants by a single firm of solicitors, and the implications for the allocation of costs among the defendants.

Upon reviewing the submissions and the procedural history, the court concluded that Graham John Robinson should be appointed as the costs assessor to make a default assessment of the costs payable by the second defendant to the plaintiff. This decision followed the original order made by Justice Byrne on 4 June 2008, which directed that the second defendant bear the costs of the plaintiff's application. The court's reasoning hinged on the need for a fair and just allocation of costs, considering the representation of the defendants by a single legal entity.

The final orders of the court appointed Graham John Robinson as the costs assessor to determine the amount of costs to be paid by the second defendant to the plaintiff, in accordance with the original order of Justice Byrne.

Orders

Orders of the court

That Graham John Robinson be appointed as costs assessor to make a default assessment of the costs payable by the second defendant to the plaintiff pursuant to the order of the Honourable Justice Byrne made 4 June 2008.

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:	Glenwood Homes P/L v Eberhard & Ors [2008] QSC 192
PARTIES:	GLENWOOD HOMES PTY LTD (ACN 010 930 284) (plaintiff) v GEOFFREY EBERHARD (first defendant) JOHN ANDERSON (second defendant) ANTHONY NEWTON (third defendant) BEXALAW PTY LTD (ACN 075 575 209) (third party) GLENWOOD HOMES PTY LTD (ACN 010 930 284) (fourth party)
FILE NO/S:	BS3006 of 2004
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	28 August 2008
DELIVERED AT:	Brisbane
HEARING DATE:	21 August 2008
JUDGE:	Dutney J
ORDER:	That Graham John Robinson be appointed as costs assessor to make a default assessment of the costs payable by the second defendant to the plaintiff pursuant to the order of the Honourable Justice Byrne made 4 June 2008.
CATCHWORDS:	PROCEDURE – COSTS – RECOVERY OF COSTS – where application by plaintiff under r 708 of the Uniform Civil Procedure Rules – where originally ordered that defendants and the third party pay the plaintiffs costs of the application – where parties against whom the order was made were represented by a single firm of solicitors – where cost statement served – where first and third defendants and the third party filed notice of objection – where plaintiff seeks default costs assessment pursuant to r 708 – whether first and third defendants jointly and severally liable for default costs assessment made against second defendant Uniform Civil Procedure Rules, r 708 Baxter v Obacelo Pty Ltd (2001) 205 CLR 635, referred to Probiotec Ltd v The University of Melbourne [2008] FCAFC 5, referred to Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574, referred to
COUNSEL:	T Matthews for the plaintiff No appearance for the defendants, third and fourth parties
SOLICITORS:	Boulton Cleary & Kern for the plaintiff No appearance for the defendants, third and fourth parties