Hobbs v Oildrive (No 2)

[2008] QSC 52

SUPREME COURT OF QUEENSLAND

CITATION:

Hobbs & Anor v Oildrive (No 2) [2008] QSC 52

PARTIES:

PHILLIP LESLIE HOBBS
and
KAREN LEIGH McLELLAN
(plaintiffs)
v
OILDRIVE PTY LTD (ACN 010 191 821)
(defendant)

FILE NO:

636/04

DIVISION:

Trial Division

PROCEEDING:

Application for Costs

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

18/3/08

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Daubney J

ORDER:

1.    That the plaintiffs pay the defendant’s costs of an incidental to the proceeding (including any reserved costs) to be agreed or assessed on the standard basis;

2.    That the assessment of the defendant’s costs be made on the basis that, except so far as they are of an unreasonable amount, the fees of two counsel should be regarded as costs necessary and proper.

CATCHWORDS:

PROCEDURE – COSTS – TAXATION – PARTICULAR ITEMS – Counsel’s fees – Certifying for Counsel – where the defendant briefed junior and senior counsel – whether the court should make an order certifying that the Defendant recover its costs of defending the proceedings with an allowance for both senior and junior counsel

PROCEDURE – COSTS – TAXATION – ASSESSMENT IN LIEU OF TAXATION – whether an order should be made giving the parties liberty to re-list the matter for fixing of costs under Rule 687 of the Uniform Civil Procedure Rules

Australand Corporation (Qld) Pty Ltd v Johnson & Ors  [2007] QSC 128
Chongherr Investments Ltd v Titan Sandstone Pty Ltd [2007] QCA 278 at [6].
ASIC v Atlantic 3 Financial (Aust) Pty Ltd & Ors [2008] QSC 9

Uniform Civil Procedure Rules1999 (Qld).

COUNSEL:

C A White for the Plaintiff
J C Bell QC with P D Lane for the Defendant

SOLICITORS:

Ruddy, Tomlins & Baxter for the Plaintiff
Moray & Agnew for the Defendant

1. On 10 March 2008, I gave judgment in this matter for the defendant, and gave the parties leave to make further submissions on costs.

1. The defendant now seeks the following orders:

(a)That the plaintiffs pay the defendant’s costs of and incidental to the proceeding, including any reserved costs, to be agreed or assessed on the standard basis;

(b)That it be certified that the defendant recover its costs of defending the proceedings with allowance for both senior and junior counsel at the trial;

(c)That in the event the parties have not agreed on the defendant’s costs by 11 April 2008, the defendant be at liberty to re-list the matter for its costs to be fixed pursuant to Rule 687 of the Uniform Civil Procedure Rules 1999 (“UCPR”).

1. Judgment having been given in the proceeding for the defendant, the plaintiffs (quite properly) do not oppose the first of these orders.

1. As to the second of these orders, the practice of certifying (or seeking certification for) two counsel seems to be a relic of the procedure provided for under the previous Rules of the Supreme Court.  Order 91 Rule 108 provided:

‘In cases in which the costs of employing two or more counsel may properly…