Morrison v Willats

[2004] QDC 520

[2004] QDC 520

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD3259 of 2004

DEINA RUTH MORRISON	Applicant
and
MICHAEL JOHN WILLATS	Respondent

BRISBANE

..DATE 25/11/2004

ORDER

CATCHWORDS: Costs in proceeding under Part 19 of the Property Law Act 1974 - respondent in default of orders consented to by him that he provide his affidavit and statement of financial circumstances - further order made allowing extended time - respondent ordered to pay indemnity costs under s 341(4)(d) and UCPR rule 704.

HIS HONOUR: This is an interlocutory application made within an originating application under Part 19 of the Property Law Act 1974 by the applicant.

On 4th October 2004 directions were made by his Honour Judge McGill SC.  His order is Document 5 on the Court file with the filing date 22 October 2004.  The whole point of the order was to advance the originating application towards finalisation and the first of the agreed directions required the respondent, Michael John Willats, to "file and serve an affidavit and statement of financial circumstances on or before 25 October 2004".

According to the Associate's endorsement on the order sheet the respondent was represented by Mr Lilley before his Honour.  He can hardly complain about being subject to the command of the order.  There is nothing whatever filed by him or on his behalf. 

Mr Jennings, appearing for the applicant today, without any adversary (as the respondent failed to appear when called) disclaims any particular familiarity with the circumstances, his brief being now confined to the present application; it may be taken from him that the applicant is in difficulty in proceeding with her application unless and until material comes in from the respondent.

What is sought today is a further order in terms of the one Judge McGill made allowing until 3rd December 2004; that may be seen as reasonable in light of a letter from the respondent's solicitors dated 18 November 2004 which includes the following:

"We refer to the above and to your discussions with our Mr Whitehead and understand that you will extend the time for compliance until Monday 29th September 2004 at 5 p.m., taking into account our extreme difficulty in obtaining instructions from our client."

A further order is sought in relation to exchange of lists of documents by way of disclosure.  More significant is the claim for an order that the respondent pay the applicant's costs of the application to be assessed on the indemnity basis. 

The interlocutory application was filed on the 11th of November 2004.  It doubtless prompted the discussions referred to in the letter quoted.  The applicant's solicitor, Mr Brown, responded to it by fax sent the next day asserting that there was no agreement to extend time for compliance: 

"The conversation we had with Mr Whitehead was simply that you were endeavouring to obtain contact with your client.  You expected to do so next week and that thereafter you anticipated providing your affidavits.  We are instructed that our client has never agreed to an extension of time.  For compliancy we will be proceeding with the application returnable on 25 November 2004."

A one page affidavit of Mr Brown, sworn yesterday, deposes to service of the application by posting on Friday, 12th November 2004.

Mr Brown has acted properly in placing the opposing solicitor's letter before the Court.  The evidence before the Court on which it must act is that the assertion in that letter is incorrect.  The further difficulty in the way of the Court's acceding to the application for costs is that section 341 of the Act establishes a general philosophy of parties to proceedings under the Part bearing their own costs.  However, situations are contemplated and circumstances in which the Court may depart from the general rule and order costs;  these are set out in some detail in subsection (4).  More than one of those may be though apposite, but the circumstances are fairly and squarely within paragraph (d).

Subsection (3), as Mr Jennings says, is a warrant for the ordering of costs on interlocutory applications, notwithstanding that reading section 341 more generally it might be thought to contemplate costs orders being made only when a proceeding has been completed. If costs can be awarded, as I think they can and should be, then the general regime of the UCPR applies, including Rule 704 which permits the Court to order the costs be assessed on the indemnity basis.

I think it has to be faced that only something along those lines is likely to send the strong message to the errant respondent which the circumstances require.  The order for indemnity costs does not enrich the applicant in any way.  Hopefully it will be a salutary lesson to the respondent and ensure that he complies with relevant orders, practice directions and rules from this point on and, in particular, with orders to which, through legal representatives, he's given his consent. 
The Court's orders which are set out in an initialled draft are as follows:

1. The respondent file and serve any affidavit and statement of financial circumstances as referred to in the Court's order of 4 October 2004 on or before 3 December 2004;
2. The applicant and respondent exchange their respective lists of documents in accordance with Rule 214 of the Uniform Civil Procedure Rules 1999 (Queensland) on or before 10 December 2004;
3. Each party have liberty to apply on two days' notice;
4. Having regard to section 341(4)(d) of the Property Law Act 1974 the respondent pay the applicant's costs of and incidental to this application to be assessed on the indemnity basis.

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