Kelly v Slade - [2018] QDC 18

DISTRICT COURT OF QUEENSLAND

CITATION:

Kelly & Anor v Slade & Anor [2018] QDC 18

PARTIES:

GORDAN JAMES KELLY (First Plaintiff)

KATHLEEN MARY KELLY (Second Plaintiff)

AND

VICKI LEE SLADE (First Defendant)

DANNY ALEXANDER SLADE (Second Defendant)

FILE NO/S:

DC No 1634 of 2015

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

5 March 2018

DELIVERED AT:

Brisbane

JUDGE:

Porter QC DCJ

ORDER:

1.    The defendants pay the plaintiffs’ costs of the abandoned mediation on 24 October 2016 on an indemnity basis;

2.    The defendants pay the plaintiffs’ costs of the application filed 23 December 2016 including all reserved costs of that application;

3.    The plaintiffs pay eighty percent of the defendants’ costs of the proceedings.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where at trial the plaintiffs’ claim and the defendants’ counterclaim were dismissed – where the defendants seek an order that the plaintiffs pay the costs of the proceedings on standard basis to 25 May 2018 and then on an indemnity basis – where the plaintiffs contend that there should be no order as to costs – where there was an abandonment of the counterclaim at trial – where the defendants made offers – where the defendant failed to attend the mediation once ordered – whether the plaintiff should be required to pay costs of the trial and on an indemnity basis.

Legislation

Property Law Act 1974 (Qld) s 59
Uniform Civil Procedure Rules 1999 (Qld) rr 353, 681, 684, 698

Cases

Brice v Chambers [2014] QCA 310

Calderbank v Calderbank [1975] 3 All ER 333

Interchase Corporation Ltd (in Liq) v Grosvenor Hill (Qld) Pty Ltd (No 3) [2003] 1 Qd R 26

Kingham v Yorkston & Ors [2002] QSC 059
Mad Dogs Pty Ltd (in liq) v Gilligan's Backpackers Hotel & Resort Pty Ltd (No 4) [2016] QSC 54

McDermott v Robinson Helicopter Co (No 2) [2015] 1 Qd R 295
Mio Art Pty Ltd v Macequest Pty Ltd & Ors (No 2) [2013] QSC 271

Westpac Banking Corporation v Jamieson & Ors [2015] QCA 84

Other

J D Heydon, Cross on Evidence (Australian Looseleaf Edition) at 25360

COUNSEL:

A Skoien for the plaintiffs

SOLICITORS:

Blue Ocean Law Group for the plaintiffs

BR Solicitors for the defendants

Introduction

On 7 December 2017, I dismissed the plaintiffs’ claim and the defendants’ counterclaim and sought submissions on costs. The plaintiffs’ submissions were provided on 29 January 2018 and the defendants’ submissions on 2 February 2018.
The defendants seek an order that the plaintiffs pay the costs of the proceedings on standard basis to 25 May 2015 and then on an indemnity basis. They rely on the following matters.
First, the defendants contend that they have been successful at trial in defending the claim and that accordingly the costs of the proceedings should follow the event under Rule 681(1) UCPR. They contend that the dismissal of the counterclaim should not lead to any contrary order because the counterclaim…

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 Kelly v Slade

Details

AGLC: Kelly v Slade [2018] QDC 18
Case: [2018] QDC 18
Decision Date: 5 March 2018

CaseChat Overview and Summary

The case of Kelly v Slade involved a dispute where both parties, the plaintiffs and the defendants, had filed claims against each other. The trial in the court resulted in both the plaintiffs' claim and the defendants' counterclaim being dismissed. The defendants subsequently sought an order that the plaintiffs should bear the costs of the proceedings, both on a standard basis up until a specific date and on an indemnity basis thereafter. The plaintiffs argued that no order should be made regarding costs, citing the abandonment of the counterclaim during the trial, and the defendants' failure to attend a mandated mediation. The plaintiffs also noted that the defendants had made certain offers, which were not detailed in the text.

The central legal issues revolved around whether the plaintiffs should be held responsible for the costs of the trial and, if so, whether these costs should be on an indemnity basis. The court had to consider the abandonment of the counterclaim, the offers made by the defendants, and the failure of one defendant to attend the ordered mediation. The court's analysis included assessing the conduct of both parties throughout the proceedings, including their participation in mediation and the timing and nature of the offers made.

In its reasoning, the court determined that the defendants should pay the plaintiffs' costs associated with an abandoned mediation session and the costs of an application filed by the plaintiffs. The court also found that the plaintiffs should contribute to the defendants' costs of the proceedings, but only to the extent of eighty percent. This decision was based on the court's assessment of the overall conduct of the parties and the specific procedural steps that had been taken. The court did not find it appropriate to order the plaintiffs to pay the defendants' costs on an indemnity basis.

The final orders of the court were that the defendants pay the plaintiffs' costs of the abandoned mediation and the costs of a subsequent application, both on an indemnity basis. Additionally, the plaintiffs were ordered to pay eighty percent of the defendants' overall costs of the proceedings. This outcome reflected the court's balanced view of the parties' conduct and the specific events that had transpired during the litigation.

Orders

Orders of the court

1. The defendants pay the plaintiffs’ costs of the abandoned mediation on 24 October 2016 on an indemnity basis;

2. The defendants pay the plaintiffs’ costs of the application filed 23 December 2016 including all reserved costs of that application;

3. The plaintiffs pay eighty percent of the defendants’ costs of the proceedings.

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:	Kelly & Anor v Slade & Anor [2018] QDC 18
PARTIES:	GORDAN JAMES KELLY (First Plaintiff) KATHLEEN MARY KELLY (Second Plaintiff)
AND
VICKI LEE SLADE (First Defendant) DANNY ALEXANDER SLADE (Second Defendant)
FILE NO/S:	DC No 1634 of 2015
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	5 March 2018
DELIVERED AT:	Brisbane
JUDGE:	Porter QC DCJ
ORDER:	1. The defendants pay the plaintiffs’ costs of the abandoned mediation on 24 October 2016 on an indemnity basis; 2. The defendants pay the plaintiffs’ costs of the application filed 23 December 2016 including all reserved costs of that application; 3. The plaintiffs pay eighty percent of the defendants’ costs of the proceedings.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where at trial the plaintiffs’ claim and the defendants’ counterclaim were dismissed – where the defendants seek an order that the plaintiffs pay the costs of the proceedings on standard basis to 25 May 2018 and then on an indemnity basis – where the plaintiffs contend that there should be no order as to costs – where there was an abandonment of the counterclaim at trial – where the defendants made offers – where the defendant failed to attend the mediation once ordered – whether the plaintiff should be required to pay costs of the trial and on an indemnity basis. Legislation Property Law Act 1974 (Qld) s 59 Uniform Civil Procedure Rules 1999 (Qld) rr 353, 681, 684, 698 Cases Brice v Chambers [2014] QCA 310 Calderbank v Calderbank [1975] 3 All ER 333 Interchase Corporation Ltd (in Liq) v Grosvenor Hill (Qld) Pty Ltd (No 3) [2003] 1 Qd R 26 Kingham v Yorkston & Ors [2002] QSC 059 Mad Dogs Pty Ltd (in liq) v Gilligan's Backpackers Hotel & Resort Pty Ltd (No 4) [2016] QSC 54 McDermott v Robinson Helicopter Co (No 2) [2015] 1 Qd R 295 Mio Art Pty Ltd v Macequest Pty Ltd & Ors (No 2) [2013] QSC 271 Westpac Banking Corporation v Jamieson & Ors [2015] QCA 84 Other J D Heydon, Cross on Evidence (Australian Looseleaf Edition) at 25360
COUNSEL:	A Skoien for the plaintiffs
SOLICITORS:	Blue Ocean Law Group for the plaintiffs BR Solicitors for the defendants