JDM v Hodges (No 2)

Case [2019] QSC 139


SUPREME COURT OF QUEENSLAND

CITATION:

JDM v Hodges & Anor (No 2) [2019] QSC 139

PARTIES:

JDM (Applicant)

v
GEMMA ANNE HODGES

(First Respondent)

and

AAI LIMITED (ABN 48005297807)

(Second Respondent)

FILE NO/S:

Cairns Supreme Court File No 155 of 2019 (formerly Cairns District Court File No 74 of 2015)

Cairns Supreme Court File No 576 of 2018

Brisbane Supreme Court File No 11327 of 2018

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns (and Supreme Court at Brisbane in respect of file 11327 of 2018)

DELIVERED ON:

3 June 2019

DELIVERED AT:

Cairns

HEARING DATE:

10 May 2019

JUDGE:

Henry J

ORDERS:

1. Pursuant to ss 12 and 245 of the Guardianship and Administration Act 2000 Australian Unity Trustees Limited (ABN 55 162 061 556) (“the administrator”) be appointed administrator for the plaintiff to receive and manage:

(a)     the balance of settlement monies paid to the plaintiff pursuant to the compromise of District Court proceedings number D74/15 (now Supreme Court proceeding number 155/19) (“the personal injuries proceeding”) after deductions of statutory refunds, standard basis legal costs and outlays in respect of the personal injuries proceeding, and settlement monies already expended by the trustee of the administration trust for and on behalf of the plaintiff;

(b)     all assets and all property which has been purchased by the trustee of the administration trust for the plaintiff from the proceeds of the settlement monies including:

(i)       house and property situated at 5 Corinna Close, Edmonton purchased for and on behalf of the plaintiff in the sum of $317,269.43.

(ii)      Mitsubishi Lancer sedan vehicle purchased for and on behalf of the plaintiff in the sum of $16,250.00.

2.       The administrator be empowered to invest all monies received and held under this order pursuant to s 51 of the Guardianship and Administration Act 2000.

3.       Within seven days of this order the plaintiff’s solicitors serve a copy of it on the administrator appointed by the Court.

4.       Within 60 days of the date of this order the administrator give the Queensland Civil and Administrative Tribunal a financial management plan within the meaning of the Guardianship and Administration Act 2000 for approval.

5.       Within 21 days of this order the second defendant pay to the administrator administration and management fees in the sum of $374,295.00.

6.       Within 21 days of this order the plaintiff’s solicitors pay to the administrator the sum of $56,588.14 being all monies held in the trust account of the plaintiff’s solicitors for and on behalf of the plaintiff forming part of the balance of settlement monies received by the plaintiff’s solicitors.

7.       Within 21 days of this order the plaintiff’s mother in her role as trustee of the administration trust for the plaintiff:

(a)     obtain the return of all monies invested by the administration trust, including the investment with ASGARD Infinity eWRAP Investment Account, including any profits obtained thereon to date;

(b)     pay to the administrator all monies held by the said administration trust as trustee for the…

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JDM v Hodges (No 2) [2019] QSC 139
Case
[2019] QSC 139
Decision Date

CaseChat Overview and Summary

In the case of JDM v Hodges (No 2), the court dealt with the administration and financial management of settlement funds payable to the applicant, JDM, who has impaired capacity. The dispute involved the administration and management fees to be paid by the second respondent to the trustee of the settlement funds. The primary issue before the court was whether the parties had agreed on the amount of the fees and, if so, what that amount was. Additionally, the court had to determine whether it should assess the fees and, if so, what the assessed amount should be. The court also considered the allocation of costs between the parties.

The court held that the parties had indeed agreed on the amount of the administration and management fees, which was $374,295.00. The court arrived at this conclusion by closely examining the communications between the parties and the context in which they were made. The court found that the parties had reached an agreement on the fees, and there was no genuine dispute regarding this amount. Therefore, the court did not need to assess the fees itself. Regarding the costs, the court considered the unsuccessful nature of the originating application due to a jurisdictional issue and the fact that the amended application was based almost entirely on work already performed for the originating application. The court determined that costs should not follow the event but should be assessed based on the work done for the amended application.

The court's orders included the appointment of an administrator for JDM, the payment of administration and management fees by the second respondent, and the payment of various costs between the parties. The court also outlined specific timelines for the transfer of funds and the preparation of a financial management plan. The orders reflect the court's determination on the administration fees and the allocation of costs, providing clarity and direction for the parties involved.

Orders

Orders of the court

1. Pursuant to ss 12 and 245 of the Guardianship and Administration Act 2000 Australian Unity Trustees Limited (ABN 55 162 061 556) (“the administrator”) be appointed administrator for the plaintiff to receive and manage:

(a) the balance of settlement monies paid to the plaintiff pursuant to the compromise of District Court proceedings number D74/15 (now Supreme Court proceeding number 155/19) (“the personal injuries proceeding”) after deductions of statutory refunds, standard basis legal costs and outlays in respect of the personal injuries proceeding, and settlement monies already expended by the trustee of the administration trust for and on behalf of the plaintiff;

(b) all assets and all property which has been purchased by the trustee of the administration trust for the plaintiff from the proceeds of the settlement monies including:

(i) house and property situated at 5 Corinna Close, Edmonton purchased for and on behalf of the plaintiff in the sum of $317,269.43.

(ii) Mitsubishi Lancer sedan vehicle purchased for and on behalf of the plaintiff in the sum of $16,250.00.

2. The administrator be empowered to invest all monies received and held under this order pursuant to s 51 of the Guardianship and Administration Act 2000.

3. Within seven days of this order the plaintiff’s solicitors serve a copy of it on the administrator appointed by the Court.

4. Within 60 days of the date of this order the administrator give the Queensland Civil and Administrative Tribunal a financial management plan within the meaning of the Guardianship and Administration Act 2000 for approval.

5. Within 21 days of this order the second defendant pay to the administrator administration and management fees in the sum of $374,295.00.

6. Within 21 days of this order the plaintiff’s solicitors pay to the administrator the sum of $56,588.14 being all monies held in the trust account of the plaintiff’s solicitors for and on behalf of the plaintiff forming part of the balance of settlement monies received by the plaintiff’s solicitors.

7. Within 21 days of this order the plaintiff’s mother in her role as trustee of the administration trust for the plaintiff:

(a) obtain the return of all monies invested by the administration trust, including the investment with ASGARD Infinity eWRAP Investment Account, including any profits obtained thereon to date;

(b) pay to the administrator all monies held by the said administration trust as trustee for the plaintiff including but not limited to:

(i) all monies received by the said administration trust from the settlement monies paid in compromise of the proceedings (less outlays, purchases and expenses paid from the administration trust on behalf of the plaintiff to date);

(ii) all monies placed with any other entity by way of investment in the period since receipt of the settlement monies

(c) transfer to the administrator all assets held by the said administration trust as trustee for the plaintiff being assets purchased and/or acquired from the monies received by the administration trust from the settlement monies (including the real property and vehicle identified in subparagraph 1(b) hereof).

8. Interest under s 59(2) of the Civil Proceedings Act 2011 shall not be payable by the second defendant on the administration and management fees outstanding from the second defendant, provided that payment is made prior to the expiration of 21 days from the date of this order, and then shall only accrue and be calculated from the day following such expiry.

9. The second defendant pay:

(a) 90 per cent of the plaintiff’s costs of the originating application (Cairns Supreme Court file 576/18, filed 31.10.18 and in amended form 28.02.19);

(b) the plaintiff’s costs of the application to transfer Cairns District Court file 74/15;

(c) the plaintiff’s costs of the second defendant’s application (Brisbane Supreme Court file 11327/18, filed 17.10.18);

(d) the plaintiff’s costs of the personal injuries proceeding (Cairns Supreme Court file 155/19, formerly Cairns District Court file 74/15) excluding the plaintiff’s costs of the amended application (as pursued in the personal injuries proceeding in the form filed as an amended application on 23.04.19 in Cairns Supreme Court file 576/18 and, on and from 10.05.18, in Cairns Supreme Court file 155/19);

each to be assessed, if not agreed, on the standard basis, to the solicitors for the plaintiff within 21 days of the said assessment or agreement.

10. The plaintiff pay the second defendant’s costs of the amended application (as pursued in the personal injuries proceeding in the form filed as an amended application on 23.04.19 in Cairns Supreme Court file 576/18 and, on and from 10.05.18, in Cairns Supreme Court file 155/19), to be assessed, if not agreed, on the standard basis

11. The plaintiff’s costs of the personal injuries proceeding and applications mentioned herein excluding its costs of the amended application (as pursued in the personal injuries proceeding in the form filed as an amended application on 23.04.19, in Cairns Supreme Court file 576/18 and, on and from 10.05.18, in Cairns Supreme Court file 155/19), to be assessed if not agreed on the indemnity basis (“the indemnity costs”).

12. Following the assessment of the indemnity costs or agreement as to their amount the administrator is to:

(a) pay the difference between the standard basis costs of the plaintiff’s solicitors, and the indemnity costs of the plaintiff’s solicitors to the plaintiff’s solicitors from the monies received under paragraphs 6 and/or 7 of this order; or

unless the administrator in relation to the difference between the assessed indemnity costs and assessed standard basis costs decides to:

(b) pay such lesser sum as it may agree with the plaintiff’s solicitors; or

(c) apply to the Court for further directions.

13. The Registrar of the Court provide a copy of this order and copies of the affidavits read on this application to the Principal Registrar of the Queensland Civil and Administrative Tribunal forthwith.

14. Each of the parties, the administrator, and the plaintiff’s solicitors have liberty to apply on the giving of two business days’ notice in writing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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