Lorenz v McGreevy (No. 2) - [2022] QDC 226

DISTRICT COURT OF QUEENSLAND

CITATION:

Lorenz v McGreevy & Anor (No. 2) [2022] QDC 226

PARTIES:

FIONA FAYE LORENZ AS EXECUTOR OF THE ESTATE OF BADEN MARK JUST

(Plaintiff)

v

BRENDA MAE MCGREEVY

(First Defendant)

and
PETER MCGREEVY

(Second Defendant)

FILE NO:

D42/19

DIVISION:

Civil

PROCEEDING:

Application for a Direction

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

11 October 2022

DELIVERED AT:

District Court at Kingaroy

HEARING DATE:

Written submissions from both parties

JUDGE:

Loury KC DCJ

ORDER:

(1) That the plaintiff pay the defendants’ costs of the application on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – COSTS OUT OF FUND OR PROPERTY – BASIS ON WHICH COSTS ORDERED – where application for Beddoe order dismissed for want of jurisdiction – whether costs should be reserved – whether the defendants should be awarded costs on the indemnity basis or otherwise on the standard basis

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld) r 700

COUNSEL:
P Travers for the plaintiff

A Fraser for the defendants

SOLICITORS:
Edgar & Wood Solicitors for the plaintiff

Murdoch Lawyers for the defendants

On 21 September 2022 I ordered that the plaintiff’s application for a Beddoe order be dismissed on the basis that I did not have jurisdiction to make such an order.[1]
[1]Lorenz v McGreevy & Anor [2022] QDC 212.
The plaintiff submits that with respect to the issue of costs that the parties’ costs of the application should be reserved. The defendants submit that they ought to be awarded their costs on the indemnity basis or otherwise on the standard basis, and that the plaintiff ought not be entitled to indemnity out of the estate.
The plaintiff brought the application for a Beddoe order at the urging of the defendants.[2] That was at a time after the defendants had refused to engage in any mediation.[3] That refusal continued until I made orders on 21 September 2022 (including orders for the parties to attend mediation) after I had delivered judgment in the application for a Beddoe order. It seemed to me from submissions made on that occasion that there then remained a reluctance on the part of the defendants to participate in mediation.
[2] Affidavit of Barry Chappell filed 29 August 2022, exhibit BDC-19.
[3] Ibid exhibit BDC-4.
The position of the defendants in refusing to engage in a mediation necessitated the making of the application for the Beddoe order by the plaintiff in order to progress the matter. The defendants consented to an order by the Deputy Registrar that any Beddoe application be filed with the Court (I would infer, a reference to the District Court) on or before 24 June 2022. Whilst the defendants did foreshadow, in correspondence, that there was an issue that arose with respect to the jurisdiction of this court to make the Beddoe order, in the absence of any authority clearly establishing that lack of jurisdiction, I do not consider that the bringing of the application in…

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 Lorenz v McGreevy (No. 2)

Details

AGLC: Lorenz v McGreevy (No. 2) [2022] QDC 226
Case: [2022] QDC 226
Decision Date: 11 October 2022

CaseChat Overview and Summary

The case of Lorenz v McGreevy (No. 2) involves a dispute over costs in civil proceedings. The plaintiff sought an order under the Beddoe Act, which was dismissed for want of jurisdiction. The issue before the court was whether the costs of this application should be reserved, and if so, whether they should be awarded on the indemnity basis or the standard basis. The court had to determine the appropriate basis for awarding costs in light of the dismissal of the plaintiff's application.

In reaching its decision, the court considered the nature of the application and the outcome. It noted that the application for a Beddoe order was dismissed, and thus, the plaintiff's application was unsuccessful. The court held that it did not have jurisdiction to order costs on the indemnity basis. Instead, the court found that the costs of the application should be awarded on the standard basis. This approach reflects the unsuccessful nature of the plaintiff's application and the general principle that unsuccessful parties in civil proceedings are typically ordered to pay the standard costs of their opponent.

The court ordered that the plaintiff pay the defendants' costs of the application on the standard basis. This decision underscores the principle that the unsuccessful party in civil proceedings should bear the costs of the proceedings, unless there are exceptional circumstances warranting a different outcome. The court's decision ensures that the defendants recover the costs they reasonably incurred in responding to the plaintiff's dismissed application.

Orders

Orders of the court

(1) That the plaintiff pay the defendants’ costs of the application on the standard 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:	Lorenz v McGreevy & Anor (No. 2) [2022] QDC 226
PARTIES:	FIONA FAYE LORENZ AS EXECUTOR OF THE ESTATE OF BADEN MARK JUST (Plaintiff) v BRENDA MAE MCGREEVY (First Defendant) and PETER MCGREEVY (Second Defendant)
FILE NO:	D42/19
DIVISION:	Civil
PROCEEDING:	Application for a Direction
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	11 October 2022
DELIVERED AT:	District Court at Kingaroy
HEARING DATE:	Written submissions from both parties
JUDGE:	Loury KC DCJ
ORDER:	(1) That the plaintiff pay the defendants’ costs of the application on the standard basis.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – COSTS OUT OF FUND OR PROPERTY – BASIS ON WHICH COSTS ORDERED – where application for Beddoe order dismissed for want of jurisdiction – whether costs should be reserved – whether the defendants should be awarded costs on the indemnity basis or otherwise on the standard basis
LEGISLATION:	Uniform Civil Procedure Rules 1999 (Qld) r 700
COUNSEL:	P Travers for the plaintiff A Fraser for the defendants
SOLICITORS:	Edgar & Wood Solicitors for the plaintiff Murdoch Lawyers for the defendants