LDT v Ewg

[2013] QDC 64

[2013] QDC 64

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN

No D25 of 2013

LDT	Applicant
and
EWG	Respondent

SOUTHPORT

..DATE 25/03/2013

..DAY 1

ORDER

CATCHWORDS

Property Law Act 1974 -Application for leave to seek relief under part 19 of Act out of time - applicant requires adjournment to consider and respond to respondent’s material- respondent seeks costs - he had obtained an adjournment on a similar basis on the previous court day - directions for future steps made - costs application adjourned to be considered on hearing of application for leave

HIS HONOUR:  The court adjourns the application to the 30th of May 2013. 

It orders the applicant to file and serve her evidence in response to the respondent's material provided last week, by the 16th of April 2013, such evidence to show the utility of leave being granted to seek relief under part 19, out of time.

That's just so the Judge on that day can see that it's not pointless to allow the application to go ahead.

Order the respondent the file and serve any additional material he wishes to rely on in response, by the 7th of May 2013. 

Reserve until the adjourned date the respondent's costs of today's adjournment. 

The most contentious aspect has been the respondent's costs.  Given the way the system works, it appears he's committed to meet his counsel's costs of today.

MS HALLIDAY:  See, it's normally a no costs jurisdiction, your Honour.

HIS HONOUR:  I know.  That's what I'm going to say. 

As Ms Halliday has just risen to remind me, by section 341 of the Property Law Act 1974, "A party to a proceeding under this part bears the party's own costs", making this a jurisdiction that is ordinarily a no costs one.

The section mentioned does give the court jurisdiction in cases considered appropriate, to make an order for costs or security for costs.  It seems to me that the Judge dealing with the application, which the terms of the order indicate is one seeking leave to proceed out of time, under part 19 of the Act, it seems to me that Judge would be better equipped to determine whether the respondent makes a case for costs. 

To all appearances the applicant may have poor prospects of providing costs, except out of any provision that her application under part 19 may lead to.  The court has heard enough today to appreciate there are real issues about that.  There are contentions that property matters were resolved by the parties years back and the like. 

To a lesser extent, there are different views taken of how reasonable it might have been to expect the respondent to consent to today's adjournment on a no costs basis.  It comes about because the respondent's material provided last week raises contentions which may or may not be surprising to the lawyers for the applicant, and perhaps even to her.  She agreed to an adjournment on the last occasion to permit the respondent to consider his position and prepare material in defence of it, which he has now done.

Ms Halliday submits that a similar indulgence should be extended to her this time, but that is something, as I have indicated, that will be looked at on the 30th of May.

I have omitted to include in my recital of the order an important part of it, being that it is made on the basis of the court accepting the undertaking of the respondent by his counsel, Mr James, not to dispose of or further encumber the former jointly occupied property at 7 Indiana Court, Oxenford.  That undertaking was offered by the respondent and accepted by the court without its making any indication as to whether or not it would have been inclined to make an order in similar terms.

The point of it is that there is a caveat on the property at the moment.  The parties seem to have different views as to whether or not this proceeding would support the caveat if details were made available to the Land Titles Office with Mr James contending that the proceeding would be insufficient.  He says his client has no intention of dealing with the property in any event.  The undertaking obviates the need for Ms Halliday to seek an injunction which she apprehended might be necessary after about the 22nd of May, to protect the potential interests her client might have in preservation of the property.

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