Leonardi v Payne - [2017] QSC 319

SUPREME COURT OF QUEENSLAND

CITATION:

Leonardi v Payne & Anor [2017] QSC 319

PARTIES:

SUSAN MAREE LEONARDI
(plaintiff)
v
CLINTON JAMES PAYNE
(first defendant)
ALLIANZ AUSTRALIA INSURANCE AUSTRALIA LIMITED
ACN 000 122 850
(second defendant)

FILE NO/S:

Townsville 868 of 07

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Townsville

DELIVERED ON:

29 November 2017 (Ex tempore)

DELIVERED AT:

Townsville

HEARING DATE:

29 November 2017

JUDGE:

Justice North

ORDER:

1.   It is declared that the sum of $89,764.03 is payable pursuant to s48(1) of the Supreme Court Act 1995 by the Second Defendant to the Plaintiff as interest on the costs payable to the Plaintiff by the Second Defendant pursuant to the order of the Court made on 16 December 2009.

2.   The Second Defendant is directed to pay to the Plaintiff the said sum of $89,764.03 within twenty-one (21) days of the date hereof.

3.   The Second Defendant pay the Plaintiff’s costs of and incidental to this Application to be assessed on an indemnity basis.

CATCHWORDS:
LEGISLATION:
CASES:

INTEREST – RECOVERABILIY OF INTEREST – interest on costs – accrual of right – where consent order as to costs – where costs were then unascertained – where plaintiff contends interest is payable from date of the order made by the court – where defendant contends interest is payable from the date the costs were ascertained – whether repealed act applies – whether Supreme Court Act 1995 (Qld) applies – whether Civil Proceedings Act 2011 (Qld) applies

Acts Interpretation Act 1954 (Qld)
Civil Proceedings Act 2011 (Qld)
Supreme Court Act 1995 (Qld)
Uniform Civil Procedure Rules 1995 (Qld)

Dyktynski v BHP Titanium Minerals Pty Ltd [2001] 50 NSWLR 710, cited
Newton v The Grand Junction Railway Company (1846) 16 M&W 139, cited
Reis v Carling (1908) 5 CLR 673, cited
Hunt v R M Douglas (Roofing) Ltd [1991] AC 398, cited
Watson & Anor v Ward [2013] QCA 393, cited

COUNSEL:

T Quinn (plaintiff)
W Elliott (first and second defendants)

SOLICITORS:

Roati Legal (plaintiff)
Moray & Agnew Lawyers (first and second defendants)

On 6 December 2007 the plaintiff commenced proceedings in the Supreme Court in this registry for damages for personal injury arising out of a motor vehicle accident. Following a trial, judgment was given for the plaintiff against the defendant on 26 November 2009. The learned trial Judge reserved the question of costs and directed that there be submissions about that. On 16 December 2009, a consent order was made that the second defendants pay the plaintiff’s costs of and incidental to the action, including any reserved costs, on an indemnity basis.
Subsequent to that order, an order was made by the Registrar for the assessment of the costs on 18 August 2011, and on 28 August 2012 the certificate of the costs assessor who had been appointed by the Registrar in August 2011 issued. In his certificate, the costs assessor assessed the costs payable by the second defendant to the plaintiff at $310,424.71. Some days…

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.

Continue reading Leonardi v Payne

Details

AGLC: Leonardi v Payne [2017] QSC 319
Case: [2017] QSC 319
Decision Date: 29 November 2017 (Ex tempore)

CaseChat Overview and Summary

Leonardi v Payne involved a dispute regarding the recoverability of interest on unascertained costs following a consent order. The case was heard in the District Court of Queensland. The plaintiff argued that interest should accrue from the date the court made the order, while the defendant contended that interest should only be payable from the date the costs were ascertained. The primary legal issue was the date from which interest on unascertained costs should accrue under Queensland law. The court had to determine whether the repealed Supreme Court Act 1995 (Qld), the Civil Proceedings Act 2011 (Qld), or another provision applied to the situation. The court examined the relevant statutory provisions and the legislative intent behind them. It concluded that the repealed Supreme Court Act 1995 applied to the matter, as it was in force at the time of the consent order. The court held that interest should accrue from the date of the original order, as per the terms of the repealed act. This decision was based on the principle that the right to interest accrues from the date the underlying obligation arises, which in this case was the date of the consent order. Consequently, the court ordered the defendant to pay interest on the unascertained costs from the date of the original order.

Orders

Orders of the court

1. It is declared that the sum of $89,764.03 is payable pursuant to s48(1) of the Supreme Court Act 1995 by the Second Defendant to the Plaintiff as interest on the costs payable to the Plaintiff by the Second Defendant pursuant to the order of the Court made on 16 December 2009.

2. The Second Defendant is directed to pay to the Plaintiff the said sum of $89,764.03 within twenty-one (21) days of the date hereof.

3. The Second Defendant pay the Plaintiff’s costs of and incidental to this Application to be assessed on an indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Leonardi v Payne & Anor [2017] QSC 319
PARTIES:	SUSAN MAREE LEONARDI (plaintiff) v CLINTON JAMES PAYNE (first defendant) ALLIANZ AUSTRALIA INSURANCE AUSTRALIA LIMITED ACN 000 122 850 (second defendant)
FILE NO/S:	Townsville 868 of 07
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Townsville
DELIVERED ON:	29 November 2017 (Ex tempore)
DELIVERED AT:	Townsville
HEARING DATE:	29 November 2017
JUDGE:	Justice North
ORDER:	1. It is declared that the sum of $89,764.03 is payable pursuant to s48(1) of the Supreme Court Act 1995 by the Second Defendant to the Plaintiff as interest on the costs payable to the Plaintiff by the Second Defendant pursuant to the order of the Court made on 16 December 2009. 2. The Second Defendant is directed to pay to the Plaintiff the said sum of $89,764.03 within twenty-one (21) days of the date hereof. 3. The Second Defendant pay the Plaintiff’s costs of and incidental to this Application to be assessed on an indemnity basis.
CATCHWORDS: LEGISLATION: CASES:	INTEREST – RECOVERABILIY OF INTEREST – interest on costs – accrual of right – where consent order as to costs – where costs were then unascertained – where plaintiff contends interest is payable from date of the order made by the court – where defendant contends interest is payable from the date the costs were ascertained – whether repealed act applies – whether Supreme Court Act 1995 (Qld) applies – whether Civil Proceedings Act 2011 (Qld) applies Acts Interpretation Act 1954 (Qld) Civil Proceedings Act 2011 (Qld) Supreme Court Act 1995 (Qld) Uniform Civil Procedure Rules 1995 (Qld) Dyktynski v BHP Titanium Minerals Pty Ltd [2001] 50 NSWLR 710, cited Newton v The Grand Junction Railway Company (1846) 16 M&W 139, cited Reis v Carling (1908) 5 CLR 673, cited Hunt v R M Douglas (Roofing) Ltd [1991] AC 398, cited Watson & Anor v Ward [2013] QCA 393, cited
COUNSEL:	T Quinn (plaintiff) W Elliott (first and second defendants)
SOLICITORS:	Roati Legal (plaintiff) Moray & Agnew Lawyers (first and second defendants)