Hoch v Hoch (No 2) - [2020] QSC 386

SUPREME COURT OF QUEENSLAND

CITATION:

Hoch v Hoch (No 2) [2020] QSC 386

PARTIES:

IAN RICHARD HOCH
(applicant)
v
ANDREW GRANT HOCH

(respondent)

FILE NO/S:

BS No 11084 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Bradley J

ORDER:

The Order of the Court is that:

1.   The respondent pay the applicant’s costs of the application filed 6 December 2018, save for the costs thrown away by the adjournment of the trial on 10 August 2020.

2.   The applicant’s cost payable under paragraph 1 above are to be assessed on the standard basis up to and including 11 July 2020 and on the indemnity basis from and including 12 July 2020.

3.   Any assessment of the applicant’s costs is to proceed on the basis that it was necessary and proper for the applicant to incur the reasonable costs of Queen’s Counsel and junior counsel for the trial of the application.

4.   Liberty to apply.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – UNREASONABLE REFUSAL OF OFFER – where the applicant successfully applied to vary a scheme of partition proposed by statutory trustees in respect of property he owned with the respondent – where the scheme was varied in accordance with a proposal for a variation to the scheme made by the applicant prior to the hearing, as part of an offer by which the applicant would have foregone his right to an equality payment of $63,145 and an allowance of $42,500 for improvements he effected to the property – where the offer was refused by the respondent – where the respondent would have been better off by $53,628 if he had accepted the offer – whether the respondent’s refusal of the offer was unreasonable – whether the respondent should be ordered to pay the costs of the applicant on the indemnity basis from the day after it lapsed

Baygol Pty Ltd v Foamex Polystyrene Pty Ltd [2005] FCA 1089, cited
Beardmore v Franklins Management Services Pty Ltd [2003] 1 Qd R 1, cited
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, cited
Tector v FAI General Insurance Co Ltd [2001] 2 Qd R 463, cited

COUNSEL:

D A Skennar QC, with M Brooks, for the applicant

L Copley for the respondent

SOLICITORS:

Australian Property Lawyers for the applicant
Thynne + Macartney for the respondent

On 4 December 2020, the court made orders varying the scheme of partition for the partition of a grazing property in central Queensland known as “Kerand” (the property)[1] and reasons for decision were published.[2] The orders followed a trial in an application filed in this proceeding by Ian Richard Hoch (the applicant) seeking such orders. Andrew Grant Hoch (the respondent) was the respondent to that application.
[1]The real property description…

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 Hoch v Hoch (No 2)

Details

AGLC: Hoch v Hoch (No 2) [2020] QSC 386
Case: [2020] QSC 386
Decision Date: 18 December 2020

CaseChat Overview and Summary

In the matter of Hoch v Hoch (No 2), the parties were in dispute over an application to vary a scheme of partition. The case was heard in the Supreme Court of Queensland. The applicant had previously applied to vary a scheme of partition, which had been proposed by statutory trustees in respect of property he owned jointly with the respondent. The applicant made an offer to forego his right to an equality payment and an allowance for improvements he made to the property. The respondent refused the offer, and the applicant subsequently succeeded in varying the scheme in accordance with his proposal. The respondent’s refusal of the offer resulted in him being worse off by $53,628.

The primary legal issue the court had to decide was whether the respondent’s refusal of the applicant’s offer was unreasonable. The court also had to determine whether the respondent should be ordered to pay the applicant’s costs on the indemnity basis from the day after the offer lapsed. The court considered that the respondent’s refusal of the offer was unreasonable, as he would have been better off by $53,628 if he had accepted it. The court also held that the respondent should be ordered to pay the applicant’s costs on the indemnity basis from the day after the offer lapsed.

The court found that the applicant’s costs of the application filed on 6 December 2018 were to be paid by the respondent, except for the costs thrown away by the adjournment of the trial on 10 August 2020. The applicant’s costs were to be assessed on the standard basis up to and including 11 July 2020 and on the indemnity basis from and including 12 July 2020. The court further held that it was necessary and proper for the applicant to incur the reasonable costs of Queen’s Counsel and junior counsel for the trial of the application.

The final orders of the court were that the respondent pay the applicant’s costs of the application filed on 6 December 2018, save for the costs thrown away by the adjournment of the trial on 10 August 2020. The applicant’s costs were to be assessed on the standard basis up to and including 11 July 2020 and on the indemnity basis from and including 12 July 2020. The assessment of the applicant’s costs was to proceed on the basis that it was necessary and proper for the applicant to incur the reasonable costs of Queen’s Counsel and junior counsel for the trial of the application. The court granted liberty to apply for further orders.

Orders

Orders of the court

The Order of the Court is that:

1. The respondent pay the applicant’s costs of the application filed 6 December 2018, save for the costs thrown away by the adjournment of the trial on 10 August 2020.

2. The applicant’s cost payable under paragraph 1 above are to be assessed on the standard basis up to and including 11 July 2020 and on the indemnity basis from and including 12 July 2020.

3. Any assessment of the applicant’s costs is to proceed on the basis that it was necessary and proper for the applicant to incur the reasonable costs of Queen’s Counsel and junior counsel for the trial of the application.

4. Liberty to apply.

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:	Hoch v Hoch (No 2) [2020] QSC 386
PARTIES:	IAN RICHARD HOCH (applicant) v ANDREW GRANT HOCH (respondent)
FILE NO/S:	BS No 11084 of 2016
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 December 2020
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Bradley J
ORDER:	The Order of the Court is that: 1. The respondent pay the applicant’s costs of the application filed 6 December 2018, save for the costs thrown away by the adjournment of the trial on 10 August 2020. 2. The applicant’s cost payable under paragraph 1 above are to be assessed on the standard basis up to and including 11 July 2020 and on the indemnity basis from and including 12 July 2020. 3. Any assessment of the applicant’s costs is to proceed on the basis that it was necessary and proper for the applicant to incur the reasonable costs of Queen’s Counsel and junior counsel for the trial of the application. 4. Liberty to apply.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – UNREASONABLE REFUSAL OF OFFER – where the applicant successfully applied to vary a scheme of partition proposed by statutory trustees in respect of property he owned with the respondent – where the scheme was varied in accordance with a proposal for a variation to the scheme made by the applicant prior to the hearing, as part of an offer by which the applicant would have foregone his right to an equality payment of $63,145 and an allowance of $42,500 for improvements he effected to the property – where the offer was refused by the respondent – where the respondent would have been better off by $53,628 if he had accepted the offer – whether the respondent’s refusal of the offer was unreasonable – whether the respondent should be ordered to pay the costs of the applicant on the indemnity basis from the day after it lapsed Baygol Pty Ltd v Foamex Polystyrene Pty Ltd [2005] FCA 1089, cited Beardmore v Franklins Management Services Pty Ltd [2003] 1 Qd R 1, cited Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, cited Tector v FAI General Insurance Co Ltd [2001] 2 Qd R 463, cited
COUNSEL:	D A Skennar QC, with M Brooks, for the applicant L Copley for the respondent
SOLICITORS:	Australian Property Lawyers for the applicant Thynne + Macartney for the respondent