Mills v Mills (No 2)

[2008] QSC 334

SUPREME COURT OF QUEENSLAND

CITATION:

Mills v Mills (No. 2) [2008] QSC 334

PARTIES:

EDWARD WILSON MILLS
(plaintiff)

v

MARGARET MILLS (AS TRUSTEE OF THE ESTATE OF JOHN WILLIAM ROBERT MILLS (DECEASED) ABN 24 009 790 354)
(defendant)

FILE NO:

BS No 5016 of 2006

DIVISION:

Trial Division

PROCEEDING:

Civil Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

18 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

Decision on the papers

JUDGE:

Applegarth J

ORDER:

1.    It is declared that, for the purposes of the Deed of Partnership dated 29 October 1965, the net value of the deceased’s share in the partnership, as at 1 February 2004, is $118,952.

2.    There be no order as to costs.

3.    Exhibit 4 be returned to the plaintiff.

4.   There be liberty to apply in relation to the making of consequential orders on the giving of not less than seven days notice.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – OTHER CASES – SUBSTANTIAL SUCCESS – judgment in partnership dispute – where amount payable by plaintiff in consequence of judgment less than plaintiff’s formal offer to settle – where defendant incurred substantial costs resisting claims not abandoned by plaintiff until shortly before trial – where each party had both a measure of success and a measure of failure – whether any order should be made as to costs

Uniform Civil Procedure Rules 1999, r 360, r 361, r 684

ACN 005 408 462 Pty Ltd (formerly TEAC Australia Pty Ltd) (No. 2) [2008] FCA 1184, cited
Castro v Hillery [2003] 1 Qd R 651, cited
Colburt v Beard [1992] 2 Qd R 67, cited
Mills v Mills [2008] QSC 249, cited
Mobile Innovations Ltd v Vodafone Pacific Ltd [2003] NSWSC 423, cited
Ruddock v Vadarlis (No 2) (2001) 115 FCR 229, cited
Thiess v TCN Channel 9 Pty Ltd (No 5) [1994] 1 Qd R 156, cited

Todrell Pty Ltd v Finch [2007] QSC 386, cited

COUNSEL:

J A Griffin QC for the plaintiff
R J Anderson for the defendant

SOLICITORS:

Beven Bowe & Associates for the plaintiff
McInnes Wilson Lawyers for the defendant

1. The parties are agreed that, as a consequence of my Reasons for Judgment dated 17 October 2008, the amount the plaintiff is obliged to pay the defendant for the deceased’s share in the partnership as at 1 February 2004 is the sum of $118,952.  The parties are also agreed that the amount payable as interest is $42,823.  The total amount that is payable to the defendant, inclusive of interest, is therefore $161,775.

1. The parties have now made written submissions on the question of costs.  They indicated that they were prepared to rely upon these written submissions without the need for a further hearing.

1. The dispute between the parties commenced in about October 2005 when a letter was sent by the former solicitors for the defendant to the plaintiff expressing an interest in having the deceased’s interest in the assets of the…