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Grace v Jeneka

Grace v Jeneka

Case [2002] QCA 335 3 September 2002

Costs

Security for Costs

Abuse of Process

Civil Litigation & Procedure

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[2002] QCA 335

COURT OF APPEAL

McMURDO P
JERRARD JA
ATKINSON J

Appeal No 4285 of 2002

JOHN BERESFORD GRACE Applicant (Plaintiff)

and

NICOLE JENEKA Respondent (Defendant)

BRISBANE

..DATE 03/09/2002

JUDGMENT

THE PRESIDENT: Justice Atkinson will deliver her reasons first.

ATKINSON J: On the 16th of April 2002, the trial of this matter was listed in the District Court. At the commencement of proceedings on that day, the applicant's solicitors withdrew from the case and the applicant, who was the plaintiff at trial, sought an adjournment. The learned trial judge granted the adjournment but made an order that the applicant pay the respondent's costs thrown away by the adjournment and that the applicant pay security for costs in the action in the sum of $15,000. The applicant seeks leave to appeal against both aspects of the costs order.

The order for costs was made under section 341 of the Property Law Act 1974 (Qld). That section reads:

A party proceeding under this part bears the parties own costs.

However, if the Court is satisfied there are circumstances justifying it making an order, it may make any order for costs or security for costs it considers appropriate.

The Court may make an order at any stage of the proceeding or after the proceeding ends.

In considering whether there are circumstances justifying it making an order, the Court must consider the following matters -
(a)The income, property and financial resources of each of the parties;
(b)Whether any party has legal aid and the terms of the legal aid;
(c)The conduct of each of the parties in relation to the proceeding, including, for example conduct about pleadings, particulars, disclosure, inspection, interrogatories, admissions of fact and production of documents;
(d)Whether the proceeding results from a party's failure to comply with the previous order made under this part;
(e)Whether any party has been wholly unsuccessful in the proceeding;
(f)Whether any party made an offer to settle under the Uniform Civil Procedure Rules 1999 and the terms of the offer;
(g)Any fact or circumstance the Court considers the justice of the case requires to be taken into account."

Section 341 was introduced to give effect to a different costs regime with regard to property disputes between partners or former partners to de facto relationships from the costs regime which applies to most civil litigation before the courts of this State: see the Queensland Law Reform Commission: report No 44, De Facto Relationships June 1993 at pages 123 to 124. In other civil litigation the usual rule is that costs are in the discretion of the court but follow the event unless the court considers that another order is more appropriate: see UCPR Rule 689(1).

Section 341 has been the subject of little judicial consideration in Queensland. It would, therefore, be appropriate to grant leave to appeal pursuant to section 118(3) of the District Court Act 1967, despite the fact that the orders made were interlocutory, so long as the decision is attended with sufficient doubt to…

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 Grace v Jeneka

Details

AGLC: Grace v Jeneka [2002] QCA 335
Case: [2002] QCA 335
Decision Date: 03/09/2002

CaseChat Overview and Summary

In Grace v Jeneka, the applicant, John Beresford Grace, sought leave to appeal against two costs orders made by the trial judge in the District Court. The first order required Grace to pay the respondent's costs thrown away by an adjournment, and the second required him to pay security for costs in the sum of $15,000. The appeal was heard by McMurdo P, Jerrad J and Atkinson J of the Court of Appeal. The court considered whether the trial judge exercised his discretion in accordance with the relevant statutory provisions, particularly section 341 of the Property Law Act 1974 (Qld).

The court first examined whether the trial judge considered the relevant factors under section 341(4) in making the costs orders. The trial judge had before him submissions regarding the financial positions of the parties, and had access to the pleadings and financial statements. The judge also considered the conduct of the parties in relation to the proceedings, particularly the applicant's vague pleadings and the need for the adjournment. However, the judge did not give formal reasons for his decision, which was necessary for an order deviating from the usual rule that each party bears its own costs.

The court then considered the order for security for costs, which the applicant argued was an onerous order for which the judge did not give reasons. The applicant contended that the judge should have considered additional factors, such as the late stage at which the application was made, the probability that the order would frustrate the applicant's claim, and the correct quantum of the security for costs. The court found that the applicant's extreme financial circumstances and the lack of reasons for the order made it attended with sufficient doubt to warrant reconsideration, as substantial injustice may result from allowing the order to stand.

The court allowed the appeal and set aside the orders made by the trial judge. Instead, the court ordered that the applicant pay the costs thrown away by the adjournment, and that the matter be stayed until payment of those costs. The respondent was ordered to pay the applicant's costs of the application and appeal. The respondent was also granted a certificate under the Appeal Costs Fund Act 1973 Queensland.

Orders