Guilfoyle v Newman and Newman

[2004] QDC 316

DISTRICT COURT OF QUEENSLAND

CITATION:

Guilfoyle v Newman & Newman [2004] QDC 316

PARTIES 

STACEY LEANNE GUILFOYLE
(Applicant/Plaintiff)

V

FRANK NEWMAN
(First Respondent/Defendant)

And

LESLEY NEWMAN
(Second Respondent/Defendant)

FILE NO/S:

27 of 2003

DIVISION:

Civil

PROCEEDING:

Chamber Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

16/9/04

DELIVERED AT:

Ipswich

HEARING DATE:

17/7/04

JUDGE:

Judge Richards

ORDER:

That the plaintiff  pay the costs of the application for summary judgment to be assessed. 

CATCHWORDS:

Costs – summary judgement application

COUNSEL:

R V Hanson for plaintiff

A H Morris for respondents

SOLICITORS:

Patrick Murphy for the Applicant

Primrose Couper Cronin Rudkin for the respondent

1. The decision in a summary judgement application in this matter was delivered on 17 July 2004. The parties sought to make further submissions on costs.

1. Rule 299(1) of the Uniform Civil Procedure Rules provides:

“If it appears to the court that a party who applied under this Part for judgment was or ought reasonably to have been aware that an opposite party relied on a point that would entitle that party to have the application dismissed the court may dismiss the application and order costs to be paid within a time specified by the court.”

1. In this case the plaintiff’s application for summary judgment was brought after the defendants had filed a defence wherein a number of specific areas of law were raised.  The applicant failed in her application for summary judgment. The pleadings demonstrate an arguable partnership depending on proof at trial of whether the agreement between the parties that the dog would be shown and bred could be properly described as a business venture.   

1. As I noted in my previous judgement it may well be that the plaintiff will succeed at trial and that the evidence may not be sufficient to establish that there was in fact a partnership.  However, whilst the respondent does not appear to have a strong case, there was, depending on how the evidence unfolds, always a case to argue.

1. It was argued by the defendant that the application, though not successful, was a difficult one and had the effect of narrowing the issues for trial. However, the narrowing of the issues does not mean that the application should have been made.

1. It is accepted that the convention in relation to costs is that if the application is found to have been properly brought costs should be costs in the cause or reserved. In this case however, the defendants defence disclosed an arguable defence. In those circumstances the plaintiff should pay the defendant’s costs[1]

   [1]      [1] see Evans  Deakin & co P/L v Kaiser Engineers & Constructions Inc (1968) Qd R 379 at 385

ORDER

The plaintiff is ordered to pay the costs of the application to be assessed unless otherwise agreed.

[2]