Lambourne v Marrable (No 2)

Case [2023] QSC 247

SUPREME COURT OF QUEENSLAND

CITATION:

Lambourne and Ors v Marrable and Ors (No 2) [2023] QSC 247

PARTIES:

Kate Lambourne

(First Applicant)
And
Luke John Marrable
(Second Applicant)
And
Helen Lambourne
(Third Applicant)
v

Harvey Warren Marrable

(First Respondent)
And
Philip Murphy
(Second Respondent)
And
Jason Campbell McGifford
(Third Respondent)
And
Brooke Leila McGifford
(Fourth Respondent)

FILE NO/S:

BS 9948 of 2022

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 November 2023

DELIVERED AT:

Brisbane

HEARING DATES:

27 October 2023

JUDGE:

Martin SJA

ORDER:

I make the orders attached to these reasons.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – OTHER PARTICULAR CASES AND MATTERS – where applicants brought proceedings under the Powers of Attorney Act 1998 – where the proceedings were brought by former attorneys against the principal – where the applicants were mostly unsuccessful – where the applicants claim the proceeding were within the Court’s protective jurisdiction – where applicants seek costs on an indemnity basis – whether the litigation was adversarial – whether the applicants or the first respondent should pay costs – whether the costs should be on the indemnity or standard basis

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – PARTICULAR CASES – OTHER PARTICULAR CASES – where interlocutory orders were made on an ex parte basis – where applicants failed to make proper enquiries and bring all adverse matters to the Court’s attention at the ex parte hearing – where the ex parte orders denied the respondent access to personal funds to pay for lawyers – where the respondent had to apply to set aside the ex parte orders – where ex parte orders included a declaration – where relief in the interlocutory orders are unknown to the law – whether the costs to set aside the ex parte orders should be on the indemnity basis

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – OTHER MATTERS – where interlocutory orders were made on an ex parte basis – where the applicants have been unsuccessful – whether orders should be made to put parties in the position they were in before the interlocutory orders were made

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – UNDERTAKING IN COURSE OF LEGAL PROCEEDING – where applicants gave undertakings during the proceeding – where applicants seek to be discharged from all undertakings – where the first respondent contends one undertaking should not be discharged – whether the applicants should be discharged from all undertakings  

Civil Procedure Act 2005 (NSW)
Powers of Attorney Act 1998, s 125
Uniform Civil Procedure Rules 1999, r 681
Uniform Civil Procedure Rules 2005 (NSW)

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, cited
Bolton v Sanders (No 2) [2003] VSC 409, cited
Brink’s Mat Ltd v. Elcombe [1988] 1 W.L.R. 1350, cited

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AGLC
Lambourne v Marrable (No 2) [2023] QSC 247
Case
[2023] QSC 247
Decision Date

CaseChat Overview and Summary

In Lambourne v Marrable (No 2), the applicants, former attorneys, brought proceedings against the principal under the Powers of Attorney Act 1998, seeking a range of declarations and orders. The applicants were mostly unsuccessful in their claims, and they sought indemnity costs for the proceedings on the basis that the litigation was within the Court’s protective jurisdiction. The principal, the first respondent, argued that the costs should be on the standard basis due to the adversarial nature of the proceedings and sought an order to set aside the ex parte interlocutory orders that had been made earlier in the litigation.

The court considered whether the litigation was adversarial and whether the applicants or the first respondent should bear the costs. It also assessed whether the costs should be on an indemnity or standard basis, particularly in light of the ex parte interlocutory orders that denied the first respondent access to personal funds to pay for legal representation. The court found that the ex parte orders included a declaration that was unknown to the law and that the applicants had failed to make proper enquiries and bring all adverse matters to the Court’s attention at the ex parte hearing. The first respondent had to apply to set aside the ex parte orders, and the costs to do so should be on an indemnity basis.

The court determined that the litigation was adversarial and that the first respondent should pay the costs of the proceedings on the standard basis. It also decided that orders should be made to put the parties in the position they were in before the ex parte interlocutory orders were made. The court considered the applicants' request to be discharged from all undertakings given during the proceedings, but it found that one undertaking should not be discharged.

The court made several orders, including that the first respondent pay the applicants' costs of the proceedings on the standard basis, that the first respondent be put in the position they were in before the ex parte interlocutory orders were made, and that the applicants be discharged from all but one of their undertakings.

Orders

Orders of the court

I make the orders attached to these reasons.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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