Grundmann v Georgeson

[2000] QCA 394

SUPREME COURT OF QUEENSLAND

CITATION:

Grundmann v Georgeson  [2000] QCA 394

PARTIES:

DAVID GRUNDMANN
(applicant/appellant)
v
LAURENCE EDWIN GEORGESON
(respondent/respondent)

FILE NO/S:

Appeal No 61 of 2000
SC No 117 of 1995

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 September 2000

DELIVERED AT:

Brisbane

HEARING DATE:

20 September 2000

JUDGES:

Pincus and Thomas JJA, White J
Judgment of the Court

ORDER:

Appeal dismissed with costs

CATCHWORDS:

PROCEDURE – COSTS – JURISDICTION – COSTS INDEMNITY ONLY

PROCEDURE – COSTS – TAXATION – PRINCIPLES OF TAXATION – IN GENERAL – appellant unsuccessful at trial and appeal in action against respondent – costs order made in favour of respondent – respondent's solicitors engaged and instructed by Right to Life Association – whether respondent liable to pay solicitors' costs – whether appellant required to pay fees of respondent's solicitors pursuant to costs order

Angor Pty Ltd v Ilich Motor Company Pty Ltd (1992) 37 FCR 65, considered

Backhouse v Judd [1925] SASR 395, considered
Blackall v Trotter (No 1) [1969] VR 939, considered

Halliday v High Performance Personnel Pty Ltd (in liq) (1993) 113 ALR 637, considered

COUNSEL:

M E Pope for the appellant
G J Robinson for the respondent

SOLICITORS:

Nehmer McKee & Partners for the appellant
Boulton Cleary & Kern for the respondent

1. THE COURT:  This is an appeal from Muir J, who dismissed an application to review an assessment of costs.  The only question raised by the appeal is whether the respondent had any liability for costs;  if he did not, then, it is said, there was no right to receive any costs from the appellant.  The costs in question were asserted to have been incurred by the respondent in relation to an appeal against judgment in an action brought against him by the appellant.  In February or March 1993, Mr D Kerr, a solicitor and an officer of the Queensland Right to Life Association, gave instructions to Boulton Cleary and Kern, solicitors, of Townsville to act as solicitors on the record for the respondent in that action.  On 18 March 1993, Boulton Cleary and Kern wrote to Mr Kerr saying that, with a certain reservation, the instructions would be accepted, on the basis that they would not make any professional charges to the Association "but that in the event that an Order for costs was obtained against [the appellant] we would render costs for the work done by us and accept whatever amount in respect of those costs was recovered from him".  There was a reply from the president of the Association accepting Boulton Cleary and Kern's proposal.

1. On 7 December 1993 the respondent wrote to Boulton Cleary and Kern about the action, saying "that I wish you to take your instructions for the conduct of this litigation on my behalf from Mr Doug Kerr of the Queensland Right to Life Association".  A few months later, in April 1994, the respondent paid $7,000 into the trust account of…