LeMass v DeVere (No 3) - [2010] QSC 268

SUPREME COURT OF QUEENSLAND

CITATION: LeMass v DeVere & Anor (No 3) [2010] QSC 268
PARTIES: WILLIAM LeMASS as trustee of THE LeMASS LEGAL
TRUST
(plaintiff)
v
MICHAEL ROBERT DeVERE
(first defendant)
and
DeVERE LEGAL PTY LTD trading as DeVERE
LAWYERS QLD, BN20381992 (in liquidation)
(second defendant)
FILE NO: BS 4005 of 2009
DIVISION: Trial Division
PROCEEDING: Application
ORIGINATING
COURT: Supreme Court of Queensland
DELIVERED ON: 30 July 2010
DELIVERED AT: Brisbane
HEARING DATE: 14 May 2010
JUDGE: Daubney J
ORDERS:

1. Pursuant to UCPR r 7, the time for compliance by the first defendant with the order of 12 January 2010 be extended to 16 March 2010.
2. The first defendant pay the plaintiff’s costs of and incidental to the application for extension of time, such costs to be assessed on the indemnity basis.
3. The plaintiff’s application for interlocutory judgment filed 25 March 2010 is dismissed, with each party to bear its own costs.
4. The plaintiff’s application for the first defendant to be punished for contempt filed 25 March 2010 is dismissed, with each party to bear its own costs.
CATCHWORDS: PROCEDURE – COSTS – INTERLOCUTORY
PROCEEDINGS – DEPARTING FROM THE GENERAL
RULE – ORDER FOR COSTS ON INDEMNITY BASIS –
where first defendant failed to comply with an order of the
Court – where first defendant brought an application for
extension of time for compliance with Court order – where
application granted – where plaintiff seeks costs on the
indemnity basis – whether costs should be ordered on the
indemnity basis
PROCEDURE – COSTS – INTERLOCUTORY PROCEEDINGS – GENERALLY - where first defendant failed to comply with an order of the Court – where plaintiff brought an application for interlocutory judgment and an application for punishment for contempt – where first defendant submitted these steps were unreasonable – where plaintiff granted extension of time making applications moot – where both parties seek their costs of the applications on an indemnity basis – whether each party should have the costs of the applications – whether costs should be ordered on the indemnity basis
Uniform Civil Procedure Rules 1999 (Qld), r 7
LeMass v DeVere & Anor (No. 2) [2010] QSC 140, cited
COUNSEL: A Morris QC with V G Brennan for the plaintiff
G Newton SC with M Trim for the first defendant
SOLICITORS: Carter Capner Lawyers for the plaintiff
Stockwin deVere Lawyers for the first defendant

On 6 May 2010, I delivered judgment[1] on the first defendant’s application for an extension of time to comply with the order made by me on 12 January 2010. I indicated that I intended making an order extending time for compliance, subject to hearing further from the parties on the question of costs of this and other applications brought by the plaintiff as a consequence of the first defendant’s non-compliance.
[1] [2010] QSC 140.
At the first defendant’s request, that costs argument was adjourned, and was heard by me on 14 May 2010. At the conclusion of that…

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: [2010] QSC 268
Decision Date: 30/07/2010

CaseChat Overview and Summary

In LeMass v DeVere, the parties were involved in a legal dispute that required the court to consider various procedural and costs-related issues. The case was heard in the Federal Circuit Court of Australia, where the plaintiff, LeMass, sought an extension of time for the first defendant, DeVere, to comply with an earlier court order. The plaintiff also sought interlocutory judgment, costs on an indemnity basis, and sought to have the first defendant punished for contempt.

The primary legal issues before the court were whether the court should extend the time for the first defendant's compliance with a prior order, whether costs should be awarded on an indemnity basis, and whether the first defendant should be punished for contempt. The court had to consider the principles governing the departure from the general rule in relation to costs and the appropriate circumstances under which an order for costs on an indemnity basis could be made. Additionally, the court needed to assess whether the conduct of the first defendant warranted a finding of contempt.

In its reasoning, the court determined that while the first defendant's delay in complying with the prior order was not excusable, the extension of time was warranted due to the first defendant's lack of fault. The court held that it was appropriate to order the first defendant to pay the plaintiff’s costs of and incidental to the application for extension of time on an indemnity basis, reflecting the nature of the delay and the impact on the plaintiff. However, the court dismissed the plaintiff's application for interlocutory judgment and the application to punish the first defendant for contempt, with each party bearing its own costs for these applications.

The final orders included extending the time for the first defendant's compliance by a specified date, requiring the first defendant to pay the plaintiff's costs on an indemnity basis for the extension of time application, dismissing the plaintiff's applications for interlocutory judgment and contempt, and directing that each party bear its own costs for those applications.

Orders

Orders of the court

Pursuant to UCPR r 7, the time for compliance by the first defendant with the order of 12 January 2010 be extended to 16 March 2010.

The first defendant pay the plaintiff’s costs of and incidental to the application for extension of time, such costs to be assessed on the indemnity basis.

The plaintiff’s application for interlocutory judgment filed 25 March 2010 is dismissed, with each party to bear its own costs.

The plaintiff’s application for the first defendant to be punished for contempt filed 25 March 2010 is dismissed, with each party to bear its own costs.

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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