Hunter v Hunter - [2015] QSC 181

SUPREME COURT OF QUEENSLAND

CITATION:

Hunter v Hunter & Anor [2015] QSC 181

PARTIES:

CORNELIA HUNTER

(applicant/plaintiff)

v
JOHN MALCOLM HUNTER

(first respondent/seventh defendant)
MIRONESCO PTY LTD in its own capacity and as trustee of HUNTER FAMILY TRUST

(second respondent/eighth defendant)

FILE NO/S:

SC No 4124 of 2007

CA No 260 of 2013

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 June 2015

DELIVERED AT:

Brisbane

HEARING DATE:

14 April 2015

JUDGE:

Philip McMurdo J

ORDER:

The application to review the assessment in this proceeding be refused.

CATCHWORDS:

PROCEDURE – COSTS – TAXATION – REVIEW – PRINCIPLES APPLICABLE – INTERFERENCE WITH EXERCISE OF DISCRETION – application to challenge an assessment of the respondents’ costs of the proceeding – where the plaintiff applicant was ordered to pay the respondents’ costs on an indemnity basis – where the applicant claimed she was denied procedural fairness – principles in relation to appeals as to costs – a costs assessor has a very wide discretion and the usual limitations upon the court’s interference with a discretionary judgment apply – the court is reluctant to interfere where no principle is involved and the question is, whether an assessor has correctly exercised a discretion –application to review the assessment for costs refused

Uniform Civil Procedure Rules 1999 (Qld), r 703, r 732, r 735

Amos v Monsour Legal Costs Pty Ltd [2008] 1 Qd R 304; [2007] QCA 235, cited
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621, applied
Bottoms v Reser [2000] QSC 413, cited
Hunter v Organic & Natural Enterprise Group Pty Ltd [2012] QSC 383, cited
Hunter v Organic & Natural Enterprise Group Pty Ltd (No 2) [2013] QSC 61, cited
Hunter v Organic & Natural Enterprise Group Pty Ltd [2013] QCA 331, cited
Schweppes’ Ltd v Archer (1934) 34 SR (NSW) 178, applied

COUNSEL:

The applicant/plaintiff appeared on her own behalf

M Wright for the first respondent/seventh defendant and second respondent/eighth defendant

SOLICITORS:

The applicant/plaintiff appeared on her own behalf

Wrightway Legal for the first respondent/seventh defendant and second respondent/eighth defendant

This is an application which challenges an assessment of the respondents’ costs in this proceeding which, after a lengthy trial, the applicant was ordered to pay on the indemnity basis.[1]
[1] Hunter v Organic & Natural Enterprise Group Pty Ltd [2012] QSC 383; Hunter v Organic & Natural Enterprise Group Pty Ltd (No 2) [2013] QSC 61.
The applicant, who was the plaintiff in the proceeding, sought relief under s 233 of the Corporations Act 2001 (Cth) in respect of the affairs of the first defendant. The seventh defendant to her claim was or had been her husband. The eighth defendant was a company of which he was the sole shareholder and director. It was in their favour that the order for indemnity costs of the proceeding was made and they are the respondents to this application.
The applicant appealed against the…

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 Hunter v Hunter

Details

AGLC: Hunter v Hunter [2015] QSC 181
Case: [2015] QSC 181
Decision Date: 26 June 2015

CaseChat Overview and Summary

In the case of Hunter v Hunter, the plaintiff sought to challenge an assessment of the costs incurred by the respondents in the proceeding. The plaintiff had been ordered to pay the respondents’ costs on an indemnity basis and claimed that she was denied procedural fairness during the assessment process. The primary focus of the court's consideration was whether the costs assessor had correctly exercised their discretion in determining the costs, and if there were grounds to interfere with the exercise of this discretion.

The court examined the principles applicable to appeals concerning costs, recognising that a costs assessor has a very broad discretion in such matters. It was noted that the usual limitations on the court's interference with a discretionary judgment apply, and the court is generally reluctant to intervene unless a principle is involved. The key issue was whether the costs assessor had correctly exercised their discretion in the context of the specific procedural fairness concerns raised by the plaintiff.

Upon reviewing the case, the court concluded that the costs assessor had correctly exercised their discretion, and there were no grounds to interfere with the assessment. The plaintiff's application to review the assessment was therefore refused. The court’s decision underscored the importance of respecting the wide discretion afforded to costs assessors and the limited circumstances under which a court may intervene.

The final order of the court was that the application to review the assessment in this proceeding be refused. This decision reinforces the principle that courts will not readily interfere with the exercise of discretion in costs assessments, absent clear procedural errors or principles being misapplied.

Orders

Orders of the court

The application to review the assessment in this proceeding be refused.

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:	Hunter v Hunter & Anor [2015] QSC 181
PARTIES:	CORNELIA HUNTER (applicant/plaintiff) v JOHN MALCOLM HUNTER (first respondent/seventh defendant) MIRONESCO PTY LTD in its own capacity and as trustee of HUNTER FAMILY TRUST (second respondent/eighth defendant)
FILE NO/S:	SC No 4124 of 2007 CA No 260 of 2013
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	26 June 2015
DELIVERED AT:	Brisbane
HEARING DATE:	14 April 2015
JUDGE:	Philip McMurdo J
ORDER:	The application to review the assessment in this proceeding be refused.
CATCHWORDS:	PROCEDURE – COSTS – TAXATION – REVIEW – PRINCIPLES APPLICABLE – INTERFERENCE WITH EXERCISE OF DISCRETION – application to challenge an assessment of the respondents’ costs of the proceeding – where the plaintiff applicant was ordered to pay the respondents’ costs on an indemnity basis – where the applicant claimed she was denied procedural fairness – principles in relation to appeals as to costs – a costs assessor has a very wide discretion and the usual limitations upon the court’s interference with a discretionary judgment apply – the court is reluctant to interfere where no principle is involved and the question is, whether an assessor has correctly exercised a discretion –application to review the assessment for costs refused Uniform Civil Procedure Rules 1999 (Qld), r 703, r 732, r 735 Amos v Monsour Legal Costs Pty Ltd [2008] 1 Qd R 304; [2007] QCA 235, cited Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621, applied Bottoms v Reser [2000] QSC 413, cited Hunter v Organic & Natural Enterprise Group Pty Ltd [2012] QSC 383, cited Hunter v Organic & Natural Enterprise Group Pty Ltd (No 2) [2013] QSC 61, cited Hunter v Organic & Natural Enterprise Group Pty Ltd [2013] QCA 331, cited Schweppes’ Ltd v Archer (1934) 34 SR (NSW) 178, applied
COUNSEL:	The applicant/plaintiff appeared on her own behalf M Wright for the first respondent/seventh defendant and second respondent/eighth defendant
SOLICITORS:	The applicant/plaintiff appeared on her own behalf Wrightway Legal for the first respondent/seventh defendant and second respondent/eighth defendant