Jimenez v Bugg - [2011] QDC 265

DISTRICT COURT OF QUEENSLAND

CITATION:

Jimenez & Anor v Bugg [2011] QDC 265

PARTIES:

Carlos JIMENEZ & Kim Michelle JIMENEZ
(Plaintiffs)

AND

Shannon Kyle BUGG
(Defendant)

FILE NO/S:

1701 of 2009

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court

DELIVERED ON:

18 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

Decision on written submissions

JUDGE:

Devereaux SC DJC

ORDER:

The plaintiffs are to pay 35% of the defendant’s costs of the proceeding to be assessed on the standard basis if not agreed by the parties.

Land Title Act 1994 s130

Uniform Civil Procedure Rules 1999 r681, r684

Allianz Australia Insurance v Swainson [2011] QCA 179

Cretazzo v Lombardi (1975) 13 SASR 4

Oshlack v Richmond River Council (1998) 193 CLR 72

Theissv TCN Channel Nine Pty Ltd (No 5 ) [1994] 1 Qd R 156

Todrell Pty Ltd v Finch (2008) 2 Qd R 95

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – where defendant lodged caveat without reasonable cause - where plaintiffs failed to prove loss

SOLICITORS:

Shand Taylor for the Plaintiffs

A W Bale & Son for the Defendant

I delivered judgment in this claim on 29 July 2011.[1] I have now received and considered detailed written submissions as to costs.
[1] [2011] QDC 142

There were two issues in the case – whether the defendant had lodged a caveat without reasonable cause and, if so, whether the plaintiffs suffered loss as a result.

The first issue required consideration of the onus of proof, the meaning of the term, “without reasonable cause” and the principal factual dispute between the parties. I concluded the defendant bore the onus of proving he did not lodge the caveat without reasonable cause. I found against the defendant on the principal factual dispute and concluded he had not discharged his onus of proof.

I found the plaintiffs failed to prove any loss resulting from the lodgement of the caveat.

The first of these issues occupied much of the court time. The majority of exhibits related to it.

The plaintiffs, while conceding that the primary rule is that costs should follow the event,[2] argue that the defendant’s conduct in the proceedings calls for an order[3] that he pay the plaintiffs’ costs of litigating the first issue. The plaintiffs submit the defendant has failed “on a dominant separable question of fact at the trial on a knowingly false basis”, referring to the reasons of Chesterman J[4] in Todrell Pty Ltd v Finch (2008) 2 Qd R 95. Had the defendant conceded the issue at the commencement of the proceedings in 2009 they would have been shortened considerably, the trial lasting less than one day. The plaintiffs suggest a division of 65% to the first issue and 35% to the second.
[2] UCPR Rule 681
[3] UCPR Rule 684
[4] As his honour then was

The plaintiffs also argue that the defendant should pay the costs of an expert report the plaintiffs obtained shortly before trial because the defendant failed to respond to…

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 Jimenez v Bugg

Details

AGLC: Jimenez v Bugg [2011] QDC 265
Case: [2011] QDC 265
Decision Date: 18 October 2011

CaseChat Overview and Summary

In the matter of Jimenez v Bugg, the court was tasked with assessing the appropriate allocation of costs between the parties. The defendant, Bugg, had lodged a caveat over a property without reasonable cause, a decision that the plaintiffs, Jimenez, contested. The case reached the court to determine whether the plaintiffs could be held liable for the defendant's costs, as per the statutory provisions and relevant case law. The primary legal issue was whether the defendant's caveat was lodged without reasonable cause and whether the plaintiffs had suffered any loss as a result. The court found that the defendant's actions were without reasonable cause, as there was no basis for the caveat. However, the plaintiffs failed to demonstrate any actual loss or damage resulting from the defendant's actions. The court held that, while the plaintiffs were not liable for the defendant's costs under the usual rule, the circumstances warranted a departure from the general principle. Consequently, the court ordered that the plaintiffs pay 35% of the defendant's costs, a decision influenced by the statutory provisions of the Land Title Act 1994 and the Uniform Civil Procedure Rules 1999, as well as precedents such as Allianz Australia Insurance v Swainson and others.

The reasoning behind the court's decision was grounded in both statutory interpretation and the broader principles of fairness in litigation. The court examined the provisions of the Land Title Act 1994 and the Uniform Civil Procedure Rules 1999, finding that a departure from the general rule regarding costs was permissible in cases involving unreasonable litigation conduct. The court noted that while the plaintiffs were not liable for the full costs incurred by the defendant, the unreasonable lodging of the caveat warranted a partial reimbursement. The court also considered relevant case law, such as Allianz Australia Insurance v Swainson, which highlighted the importance of penalising unreasonable litigation conduct. Additionally, the court referenced Cretazzo v Lombardi, Oshlack v Richmond River Council, and Theiss v TCN Channel Nine Pty Ltd (No 5), among others, to support its decision. Ultimately, the court determined that the plaintiffs should bear a portion of the defendant's costs, reflecting the unreasonable nature of the defendant's actions without imposing the full financial burden on the plaintiffs.

Orders

Orders of the court

The plaintiffs are to pay 35% of the defendant’s costs of the proceeding to be assessed on the standard basis if not agreed by the parties.

Land Title Act 1994 s130

Uniform Civil Procedure Rules 1999 r681, r684

Allianz Australia Insurance v Swainson [2011] QCA 179

Cretazzo v Lombardi (1975) 13 SASR 4

Oshlack v Richmond River Council (1998) 193 CLR 72

Theiss v TCN Channel Nine Pty Ltd (No 5 ) [1994] 1 Qd R 156

Todrell Pty Ltd v Finch (2008) 2 Qd R 95

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:	Jimenez & Anor v Bugg [2011] QDC 265
PARTIES:	Carlos JIMENEZ & Kim Michelle JIMENEZ (Plaintiffs) AND Shannon Kyle BUGG (Defendant)
FILE NO/S:	1701 of 2009
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court
DELIVERED ON:	18 October 2011
DELIVERED AT:	Brisbane
HEARING DATE:	Decision on written submissions
JUDGE:	Devereaux SC DJC
ORDER:	The plaintiffs are to pay 35% of the defendant’s costs of the proceeding to be assessed on the standard basis if not agreed by the parties. Land Title Act 1994 s130 Uniform Civil Procedure Rules 1999 r681, r684 Allianz Australia Insurance v Swainson [2011] QCA 179 Cretazzo v Lombardi (1975) 13 SASR 4 Oshlack v Richmond River Council (1998) 193 CLR 72 Theissv TCN Channel Nine Pty Ltd (No 5 ) [1994] 1 Qd R 156 Todrell Pty Ltd v Finch (2008) 2 Qd R 95
CATCHWORDS:	PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – where defendant lodged caveat without reasonable cause - where plaintiffs failed to prove loss
SOLICITORS:	Shand Taylor for the Plaintiffs A W Bale & Son for the Defendant