King v Abdel-Malik (No 2)

[2018] QDC 189

DISTRICT COURT OF QUEENSLAND

CITATION:

King v Abdel-Malik & Ors (No 2) [2018] QDC 189

PARTIES:

STEPHEN KING
(plaintiff)

v

ANGELINA RACHEL ABDEL-MALIK
(first defendant)

and

JAMIE WILLIAM POST
(second defendant)

and

AMEA ABDEL-MALIK
(third defendant)

and

ADLEY KING MALIKSON
(fourth defendant)

FILE NO/S:

86 of 2016

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Ipswich District Court

DELIVERED ON:

18 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

6 and 7 December 2017 and 20, 21 and 22 June 2018 and written submissions on 22 August and 4 September 2018

JUDGE:

Reid DCJ

ORDERS:

That the plaintiff’s claim against the first and second defendants be dismissed1.          

The plaintiff is estopped from denying the first defendant the benefit of the land2.          

The plaintiff holds one third of his legal ownership in the land on trust for the benefit of the first defendant.3.          

The plaintiff grant the first defendant a license to occupy the land.4.          

The plaintiff pay the first and second defendant’s costs of and incidental to the claim and order the plaintiff also pay costs of the first defendant’s counterclaim.5.          

The second, third and fourth defendants’ counterclaims are dismissed.6.          

7.          I make no order as to the costs of the second, third or fourth defendants’ counterclaims.

CATCHWORDS:

COSTS – Claim and counterclaim – where one party successful in both claims – consideration of her costs of both claims – where other parties were unsuccessful in their counter-claims – central issue decided against plaintiff – no real effect on costs associated with joinder of unsuccessful counterclaims – relevant considerations

Bieto v Triline Australia Pty Ltd (No.2) [2003] QDC 307

King v Abdel-Malik & Ors [2018] QDC 163

Uniform Civil Procedure Rules 1999 (Qld) s 681

COUNSEL:

RAI Myers for the plaintiff

W LeMass for the defendant

SOLICITORS:

Fallu McMillan for the plaintiff

Ashlar Legal for the defendant

1. I have previously delivered written reasons for judgment and indicated orders I felt were appropriate on the substantial issues in dispute in this matter see King v Abdel-Malik & Ors [2018] QDC 163. I also suggested orders in relation to costs and invited the parties to make further submissions. Both parties have now provided written submissions.

1. In those reasons I indicated that, subject to submissions concerning the form of the order, I would order:

1.          That the plaintiff pay the first and second defendants’ costs of and incidental to the claim; and

2.          The plaintiff also pay costs of the first defendant’s counter claim; and

3.          There be no order as to the costs of the second, third and fourth defendants’ counter-claims.

1. In the action the first and second defendants successfully resisted the plaintiff’s claim against them and the first plaintiff was successful in her counter claim against the plaintiff. The other defendants failed in their counter claim.

1. The plaintiff in written submissions submits that whilst it is accepted that;

1.          The plaintiff failed in his action for recovery of possession; and

2.          The first defendant succeed in her…