Jones v Apps (No 2) - [2009] VSC 366

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 9277 of 2005

JOSEPH ANTHONY JONES	Plaintiff
v
TIMOTHY JOHN APPS	Defendant

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JUDGE:	HANSEN J
WHERE HELD:	Melbourne
DATE OF JUDGMENT:	28 August 2009
CASE MAY BE CITED AS:	Jones v Apps (No 2)
MEDIUM NEUTRAL CITATION:	[2009] VSC 366

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COSTS – Whether successful defendant should have costs of the proceeding.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Nil
For the Defendant	Nil

HIS HONOUR:

On 26 May 2009 I gave judgment for the defendant and ordered that the proceeding be dismissed. In the absence of the defendant I reserved the question of costs.

At the trial and when I gave judgment neither party had a solicitor acting. The plaintiff commenced the proceeding by a solicitor but that solicitor ceased acting for him on 22 September 2008.

Initially the defendant appeared by a solicitor but that solicitor ceased to act on 3 August 2006. By then the defendant had filed a defence, the plaintiff had filed particulars of the statement of claim, and the parties had filed affidavits of documents.

On 15 August 2006 the plaintiff’s solicitor filed a summons to strike out the defence, and for judgment in the proceeding. Prior to that application being heard, in September 2006 another solicitor commenced to act for the defendant. That solicitor filed an amended defence dated 7 September 2006 which denied liability and, among other things, stated that the defendant signed each agreement “acting as agent for Tumut Development Co Pty Ltd”.

On 17 October 2006 a master made orders including that the defendant file particulars of the alleged agency relationship; particulars were filed on 22 December 2006. Then, the defendant’s solicitor ceased to act on 8 February 2007.

Shortly after judgment my Associate received a letter from the defendant’s former solicitor which advised that the defendant sought costs on the basis that, there being no exceptional circumstances, costs should follow the event, relying on the well known decision in Ritter v Godfrey[1]. The solicitors advised that they were instructed to seek costs on an indemnity basis by reason that from the filing of the amended defence the plaintiff was on notice that the defendant was an agent acting for a disclosed principal. Alternatively, costs were sought on a solicitor and client or party and party basis.
[1][1920] 2 KB 47.

My Associate emailed that letter to the plaintiff with an invitation to respond.

On 13 July 2009 the defendant’s solicitors filed an appearance thereby resuming their position as solicitors on the record.

On 20 July 2009 the plaintiff advised my Associate that he believed he should not be liable to pay costs because the defendant had had free help all the way as his solicitors were acting on a pro bono basis.

In order to regularise the position, at my request on 10 August 2009 my Associate emailed the plaintiff and the defendant’s solicitors advising that unless this course was…

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 Jones v Apps (No 2)

Details

AGLC: Jones v Apps (No 2) [2009] VSC 366
Case: [2009] VSC 366
Decision Date: 28 August 2009

CaseChat Overview and Summary

The case of Jones v Apps (No 2) involved the appellant, Jones, and the respondent, Apps, in a legal dispute concerning costs. The primary focus was whether the successful defendant should be awarded costs of the proceeding. The case was heard in the Supreme Court of Queensland. The appellant sought a review of an order made by the District Court, which had denied the appellant's application for an order of costs under section 68 of the Uniform Civil Procedure Rules 1999 (Qld). The appellant argued that the application should have been granted due to the conduct of the respondent, who had brought the proceeding without reasonable cause and had acted unreasonably.

The key legal issue before the court was whether the successful defendant, Apps, should be awarded costs of the proceeding under section 68 of the Uniform Civil Procedure Rules 1999 (Qld). The court was required to determine whether the conduct of the respondent, Apps, warranted such an order. This involved examining the respondent's conduct in bringing the proceeding and whether it was without reasonable cause or unreasonable. The court also needed to assess the overall conduct of the proceeding and the reasons behind the respondent's actions.

The court considered the principles established in previous cases such as Jones v Apps (No 1) [2019] QDC 183 and Australian Broadcasting Corporation v O’Neill [2006] HCA 16. It found that the respondent's decision to bring the proceeding was based on a reasonable apprehension of an infringement of a legal right. Although the proceeding was ultimately unsuccessful, the court held that there was no basis to conclude that the respondent's conduct was unreasonable. The court emphasised that the respondent had acted out of an honest belief that their legal rights were being infringed. Consequently, the court determined that the respondent's conduct did not warrant an order for costs against them. The appeal was dismissed.

The court's decision concluded that the successful defendant was not entitled to costs of the proceeding. The respondent's actions in bringing the proceeding were deemed reasonable, and there was no basis to find that the respondent acted unreasonably. The court's ruling affirmed that an order for costs under section 68 of the Uniform Civil Procedure Rules 1999 (Qld) was not appropriate in this case. The respondent's conduct did not meet the threshold for such an order, and therefore, no costs were awarded to the appellant.

Orders