Hunter v Hunter (No 3)
[2015] QSC 277
•30 September 2015
SUPREME COURT OF QUEENSLAND
CITATION:
Hunter v Hunter & Anor (No 3) [2015] QSC 277
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 for Costs
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
30 September 2015
DELIVERED AT:
Brisbane
HEARING DATE:
Heard on the papers
JUDGE:
Philip McMurdo J
ORDER:
The applicant is ordered to pay to the respondents in each application their costs of the application, including any reserved costs, to be assessed upon the indemnity basis.
CATCHWORDS:
PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where the applicant’s applications were entirely unsuccessful and there was no basis for departing from the ordinary rule that costs follow the event – where the applications were unnecessarily prolonged by the applicant – where the applicant’s submissions contained many legal flaws and ignored the well-established limitations upon the review by courts of the discretionary decisions of costs assessors, which significantly prolonged her arguments – where the applicant was ordered to pay to the respondents their costs of the applications, assessed upon the indemnity basis
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, cited
Hunter v Organic & Natural Enterprise Group Pty Ltd (No 2) [2013] QSC 61, cited
Hunter v Organic & Natural Enterprise Group Pty Ltd [2012] QSC 383, cited
Hunter v Organic & Natural Enterprise Group Pty Ltd [2013] QCA 331, citedHunter v Hunter & Anor [2015] QSC 181, cited
Hunter v Hunter & Anor (No 2) [2015] QSC 188, citedSOLICITORS:
The applicant/plaintiff appeared on her own behalf
Wrightway Legal for the first respondent/seventh defendant and second respondent/eighth defendant
The applicant was the plaintiff in a proceeding which was tried over 10 days in this court and in which she was entirely unsuccessful.[1] The trial judge ordered her to pay to the defendants their costs of the proceeding upon the indemnity basis.[2] She unsuccessfully appealed the principal judgment and was ordered to pay the costs of the other parties to the appeal upon the standard basis.[3]
[1] Hunter v Organic & Natural Enterprise Group Pty Ltd [2012] QSC 383.
[2] Hunter v Organic & Natural Enterprise Group Pty Ltd (No 2) [2013] QSC 61.
[3] Hunter v Organic & Natural Enterprise Group Pty Ltd [2013] QCA 331.
Costs statements for both the trial and the appeal were served. She made extensive objections. Indeed the assessor noted that she had objected to each and every item in the costs statement relating to the trial. Nevertheless, she enjoyed some substantial success in having amounts which had been claimed in the statements reduced.
She applied to review each assessment. I heard those applications on 14 April 2015. The hearing occupied most of the day. I then refused her application in respect of the assessment of the costs of the appeal.[4] I reserved my decision on her challenge to the assessment of costs of the trial. In June I delivered my judgment on that application, which I refused.[5]
[4] Hunter v Hunter & Anor (No 2) [2015] QSC 188.
[5] Hunter v Hunter & Anor [2015] QSC 181.
What remains to be considered are the questions of the costs of the two applications which I refused. The respondents to those applications seek their costs and upon the indemnity basis. The applicant submits that I should not make a costs order on either application, because each of my judgments is now the subject of an appeal (or in one case an application for an extension of time in which to appeal). Alternatively, the applicant submits that there should be an order by which each side bears its own costs of these applications.
There is no basis for delaying a decision until the outcome of the applicant’s appeals is known. If the applicant succeeds in one or both of those appeals, the Court of Appeal could substitute whatever order is appropriate for the orders which will be made by this judgment.
Each of the applications was entirely unsuccessful and the starting point is that the costs should follow the event in each case. The applicant makes the following submissions as to why that should not occur in these cases.
Her first submission is that the amounts sought by the costs statements were so excessive that she was forced to object to them and that she enjoyed substantial success in those objections. I accept, as I have previously said,[6] that she enjoyed more than a little success in the objections. But the present question involves the costs of the applications which she brought to review the assessments. Those applications were entirely without merit.
[6] Hunter v Hunter & Anor [2015] QSC 181, 4 [11].
The applicant’s next submission refers to an error on the part of the lawyer acting for the respondents seeking their costs of the appeal.[7] As I have discussed previously,[8] the costs statement claimed costs for the seventh and eighth respondents to the appeal (the seventh and eighth defendants in the proceeding) rather than the costs of all respondents. That mistake was argued by the applicant as a reason for setting aside the assessment of the appeal costs. In my April judgment, I rejected that submission. The mistake is of no relevance to the present questions.
[7] Applicant’s written submissions, para 3(b).
[8] Hunter v Hunter & Anor (No 2) [2015] QSC 188.
The applicant then refers to what she said were offers to settle both the trial costs and the appeal costs. But assuming those offers were made, it is plain that the amounts in each case were much less than the amounts assessed. Therefore they are of no relevance.
The applicant submits that the lawyer acting for the respondents in the appeal should have informed the assessor that, after the judgment of the Court of Appeal, the applicant reached a settlement with two of the respondents to the appeal. In my April judgment, I held that that circumstance did not provide any basis for reviewing the assessment of the appeal costs. Similarly, it is now irrelevant.
In my conclusion, there is no basis for departing from the ordinary rule that costs follow the event. The applicant should pay to the respondents to these applications their costs of them. The remaining question is whether those costs should be assessed upon the indemnity basis.
The applications to review these assessments were unnecessarily prolonged by the applicant. They were filed on 30 June 2014 with a return date in the Applications List of 25 August 2014. On that day, they were adjourned and the applicant was ordered to comply with Uniform Civil Procedure Rules 1999 (Qld) r 742(3). But on 29 August 2014 the applicant filed and served amended applications seeking to set aside the costs assessments rather than to have them reviewed under r 742. The applicant had not remedied her non-compliance with r 742(3) when the applications were listed to come before a judge on 9 September 2014. However, the applications were further adjourned to 10 October 2014. As at that date, she had still failed to comply with r 742 and a judge adjourned the applications to be heard in the Civil List on 3 February 2015. At the applicant’s request, the case was further adjourned. The applicant had sought an adjournment until June but the adjournment was granted only until 14 April 2015.
Her submissions on these applications contained many legal flaws, as I discussed in the judgments. Most importantly, her submissions ignored the well-established limitations upon the review by courts of the discretionary decisions of costs assessors. That significantly prolonged her arguments.
The applicant correctly submitted that an order for indemnity costs is exceptional and she cited the well-known judgment of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd.[9] However, because of the way in which these applications were presented and argued, I am persuaded that this is a case where the respondents to the applications should have their costs assessed upon the indemnity basis.
[9] (1993) 46 FCR 225.
It will be ordered that the applicant pay to the respondents in each application their costs of the application, including any reserved costs, to be assessed upon the indemnity basis.
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