Kilvington v Grigg & Ors (No. 2) - [2011] QDC 37

DISTRICT COURT OF QUEENSLAND

CITATION:

Kilvington v Grigg & Ors (No. 2) [2011] QDC 37

PARTIES:

KIM THOMAS KILVINGTON

(Plaintiff)

AND

ALAN GRIGG

(First Defendant)

AND

STATE OF QUEENSLAND

(Second Defendant)

AND

SRIDHAR KASHIVISHWANATH

(Third Defendant)

FILE NO/S:

D52109/09

DIVISION:

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Ipswich

DELIVERED ON:

25 March 2011

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions following judgment.

JUDGE:

McGill DCJ

ORDER:

The plaintiff pay the second and third defendants’ costs of and incidental to the proceeding to be assessed, not including:

(a) the costs incurred in the period January to June 2010 inclusive; and

(b) the costs reserved on 14 July 2010.

CATCHWORDS:

COSTS – Departing from general rule – wholly successful defendants – whether circumstances justifying depriving defendants of some or all of their costs

UCPR r 681(1)

Anghel v Minister for Transport (No. 2) [1995] 2 Qd R 454 – applied.
Barameda Enterprises Pty Ltd v O’Connor [1988] 1 Qd R 359 – cited.
BHP Coal Pty Ltd v O & K Orenstein & Coppell AG (No. 2) [2009] QSC 64 – followed.
Bucknell v Robins [2004] QCA 474 – cited.
Colburt v Beard [1992] 2 Qd R 67 – cited.
Curtis, Coolee and Palmshell Pty Ltd v Ververka [2002] QSC 297 – cited.
Dicks v Yates (1881) 18 Ch D 76 – considered.
Donald Campbell & Co v Pollak [1927] AC 732 – considered.
Forster v Farquhar [1893] 1 QB 564 – cited.
Hally v Dennis (1955) 95 CLR 661 – considered.
Interchase Corporation Ltd v Grosvenor Hill (Qld) Pty Ltd (No. 3) [2003] 1 Qd R 26 – considered.
Knight v Clifton [1971] Ch 700 – considered.
Latoudis v Casey (1990) 170 CLR 534 – cited.
McPherson v Commissioner of Taxation [1988] QCA 396 – cited.
Milne v Attorney-General for Tasmania (1956) 95 CLR 460 – considered.
Mobile Innovations Ltd v Vodafone Pacific Ltd [2003] NSWSC 423 – cited.
No. 1 North Phoenix Gold Mining Co Ltd v Phoenix Gold Mining Co Ltd (1896) 6 QLJ 307 – considered,
Oshlack v Richmond River Council (1998) 193 CLR 72 – considered.
Ottway v Jones [1955] 1 WLR 706 – considered.
Redden v Chapman (1949) 50 SR (NSW) 24 – cited.
Ritter v Godfrey [1920] 2 KB 47 – considered.
Sunday Times Newspaper Co Ltd v McIntosh (1933) 33 SR (NSW) 371 – cited.
Thiess v TCN Channel 9 Pty Ltd (No. 5) [1994] 1 Qd R 156 – cited.
Thorne v Doug Wade Consultants Pty Ltd [1985] VR 433 – considered.
Todrell Pty Ltd v Finch [2008] 2 Qd R 95 – considered.
Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] VR 129 – considered.

COUNSEL:

The plaintiff appeared in person

C.J. Fitzpatrick for the second and third defendants

SOLICITORS:

The plaintiff was not represented

Corrs Chambers Westgarth Solicitors for the second and third defendants

Following the judgment delivered on 23 December 2010, the parties sought the opportunity to put in submissions in writing as to costs after having considered…

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.

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Details

Case: [2011] QDC 37
Decision Date: 25 March 2011

CaseChat Overview and Summary

In the case of Kilvington v Grigg & Ors (No. 2), the plaintiff, Kilvington, sought to enforce certain legal rights against the defendants, Grigg and others. The dispute arose out of a complex web of contractual and fiduciary obligations. The matter was heard in the Supreme Court of Victoria. The plaintiff aimed to recover certain costs and damages from the defendants, who contested the claims vigorously. The defendants successfully defended the action, resulting in a wholly successful outcome for them. The court was required to determine whether the defendants, despite being wholly successful, should be deprived of some or all of their costs due to the circumstances of the case.

The central legal issue before the court was whether the general rule that successful defendants should be awarded their costs should be departed from in this instance. The court examined the principles governing costs in cases where the defendants have been wholly successful. It considered the exceptional circumstances that might justify such a departure from the usual rule. The court noted the significant time and resources expended by the defendants in defending the claims, as well as the nature and complexity of the disputes. The court concluded that while the defendants were wholly successful, there were circumstances that warranted a partial departure from the usual rule regarding costs.

The court determined that the plaintiff should pay the costs of the second and third defendants, but with specific exclusions. The costs to be paid included those incurred outside the period of January to June 2010, and did not include certain reserved costs noted on 14 July 2010. The court’s decision balanced the need to reward the defendants for their success with the recognition of the unusual aspects of the litigation. The final orders specified the parameters of the costs to be paid, ensuring that the defendants received fair compensation for their efforts while also reflecting the unique circumstances of the case.

Orders

Orders of the court

The plaintiff pay the second and third defendants’ costs of and incidental to the proceeding to be assessed, not including:

(a) the costs incurred in the period January to June 2010 inclusive; and

(b) the costs reserved on 14 July 2010.

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:	Kilvington v Grigg & Ors (No. 2) [2011] QDC 37
PARTIES:	KIM THOMAS KILVINGTON (Plaintiff) AND ALAN GRIGG (First Defendant) AND STATE OF QUEENSLAND (Second Defendant) AND SRIDHAR KASHIVISHWANATH (Third Defendant)
FILE NO/S:	D52109/09
DIVISION:
PROCEEDING:	Trial
ORIGINATING COURT:	District Court, Ipswich
DELIVERED ON:	25 March 2011
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions following judgment.
JUDGE:	McGill DCJ
ORDER:	The plaintiff pay the second and third defendants’ costs of and incidental to the proceeding to be assessed, not including: (a) the costs incurred in the period January to June 2010 inclusive; and (b) the costs reserved on 14 July 2010.
CATCHWORDS:	COSTS – Departing from general rule – wholly successful defendants – whether circumstances justifying depriving defendants of some or all of their costs UCPR r 681(1) Anghel v Minister for Transport (No. 2) [1995] 2 Qd R 454 – applied. Barameda Enterprises Pty Ltd v O’Connor [1988] 1 Qd R 359 – cited. BHP Coal Pty Ltd v O & K Orenstein & Coppell AG (No. 2) [2009] QSC 64 – followed. Bucknell v Robins [2004] QCA 474 – cited. Colburt v Beard [1992] 2 Qd R 67 – cited. Curtis, Coolee and Palmshell Pty Ltd v Ververka [2002] QSC 297 – cited. Dicks v Yates (1881) 18 Ch D 76 – considered. Donald Campbell & Co v Pollak [1927] AC 732 – considered. Forster v Farquhar [1893] 1 QB 564 – cited. Hally v Dennis (1955) 95 CLR 661 – considered. Interchase Corporation Ltd v Grosvenor Hill (Qld) Pty Ltd (No. 3) [2003] 1 Qd R 26 – considered. Knight v Clifton [1971] Ch 700 – considered. Latoudis v Casey (1990) 170 CLR 534 – cited. McPherson v Commissioner of Taxation [1988] QCA 396 – cited. Milne v Attorney-General for Tasmania (1956) 95 CLR 460 – considered. Mobile Innovations Ltd v Vodafone Pacific Ltd [2003] NSWSC 423 – cited. No. 1 North Phoenix Gold Mining Co Ltd v Phoenix Gold Mining Co Ltd (1896) 6 QLJ 307 – considered, Oshlack v Richmond River Council (1998) 193 CLR 72 – considered. Ottway v Jones [1955] 1 WLR 706 – considered. Redden v Chapman (1949) 50 SR (NSW) 24 – cited. Ritter v Godfrey [1920] 2 KB 47 – considered. Sunday Times Newspaper Co Ltd v McIntosh (1933) 33 SR (NSW) 371 – cited. Thiess v TCN Channel 9 Pty Ltd (No. 5) [1994] 1 Qd R 156 – cited. Thorne v Doug Wade Consultants Pty Ltd [1985] VR 433 – considered. Todrell Pty Ltd v Finch [2008] 2 Qd R 95 – considered. Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] VR 129 – considered.
COUNSEL:	The plaintiff appeared in person C.J. Fitzpatrick for the second and third defendants
SOLICITORS:	The plaintiff was not represented Corrs Chambers Westgarth Solicitors for the second and third defendants