Knowles v Wyatt (No 2)
[2012] QDC 315
•18 October 2012
DISTRICT COURT OF QUEENSLAND
CITATION:
Knowles v Wyatt (No 2) [2012] QDC 315
PARTIES:
JOHN LEONARD KNOWLES
(Plaintiff)
v
PETER ALBION WYATT
(Defendant)FILE NO/S:
385/2009
DIVISION:
Trial
PROCEEDING:
Claim
ORIGINATING COURT:
District Court of Queensland
DELIVERED ON:
18 October 2012
DELIVERED AT:
Cairns
HEARING DATE:
JUDGE:
Everson DCJ
ORDER:
The plaintiff pay the defendant’s costs of and incidental to this proceeding up to, but not including the application for costs, on the standard basis.
CATCHWORDS:
COSTS – indemnity costs – advancing a hopeless case.
SOLICITORS:
Lee Williams and Associates for the Plaintiff
Hopgood Ganim Lawyers for the Defendant
On 5 September 2012 I delivered judgment in this proceeding dismissing the plaintiff’s claim solely on the ground that it was statute barred pursuant to s 10(1) of the Limitation of Actions Act 1974. I accepted the plaintiff’s evidence that he had never received the $226,000.00 he was claiming from the defendant but found that his claim became statute barred on 31 May 2007, well before the proceeding was commenced on 14 December 2009.
The defendant now seeks its costs on the indemnity basis because the plaintiff advanced “a hopeless case”. The arguments of the parties were presented by written submissions. Although r 702 of the Uniform Civil Procedure Rules 1999 provides for the assessment of costs to be usually on the standard basis, pursuant to r 703 the court may order costs to be assessed on the indemnity basis. Such an assessment is reserved for exceptional cases. Frivolous or vexatious proceedings are examples of circumstances where an assessment of costs on an indemnity basis is ordered.
In this proceeding the plaintiff contended that the Variation to Share Sale Agreement dated 30 May 2001 (“the agreement”) was in fact a deed. Had it been found to be a deed, the plaintiff’s claim would arguably not be statute barred. The agreement was poorly drafted by the defendant’s solicitors and it contained numerous references to it being a deed in Part 4. To further confuse the appropriate categorisation of the agreement, it was described as a deed in subsequent correspondence from the defendant’s solicitors dated 8 February 2002. Against this background, I am not prepared to find that the plaintiff was advancing a hopeless case in commencing this proceeding.
Alternatively, the defendant seeks partial indemnity costs as a consequence of the proceeding being brought in the District Court at Cairns in circumstances where the claim arose in Brisbane. Despite threatening to bring an application for change of venue in correspondence, the defendant failed to do so and effectively consented to the bringing of it in this district. There is no merit in the alternative claim, either on this basis or on the further basis that certain grounds of defence were not pursued at the trial.
Accordingly, I dismiss the defendant’s application for costs on the indemnity basis.
The plaintiff submits that it is appropriate that it pay the defendant’s costs of the claim to be assessed on the standard basis, save for the costs of the defendant amending its defence on two occasions and that the defendant ought to pay the plaintiff’s costs resulting from these amendments. It is not apparent that the plaintiff incurred any additional costs as a consequence of these amendments. One amendment was before the plaintiff filed his reply and the other was at the commencement of the trial without objection by the plaintiff. These amendments were not of particular significance and occurred in circumstances where the plaintiff had not complied with his disclosure obligations in any event. I am not attracted to the plaintiff’s submissions in this regard.
I am of the view that the defendant should not be entitled to its costs of and incidental to its prolix application for costs which I have determined to be without foundation. I therefore order that the plaintiff pay the defendant’s costs of and incidental to this proceeding up to, but not including the application for costs, on the standard basis.
0
0
0