MTP v PAH (No 2) - [2012] QSC 368

SUPREME COURT OF QUEENSLAND

CITATION:

MTP v PAH (No 2) [2012] QSC 368

PARTIES:

MTP

(applicant)

v

PAH

(respondent)

FILE NO/S:

3 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 November 2012

DELIVERED AT:

Brisbane

HEARING DATES:

25 October and 7 November 2012

JUDGE:

Atkinson J

ORDERS:

1.    The respondent pay the applicant’s costs of this application to be assessed.

2.    The respondent pay interest in the sum of $10,778.04 on the judgment sum.

3.    Until such time as the respondent satisfies the judgment made on 19 September 2012 and the orders for costs made on 19 September and 22 November 2012, the respondent's real property situate at:

(i)    16 Dirk Hartog Place, Hollywell and being described at Lot 57 on RP 160160, Title Reference 15757217;

(ii)   2 Oak Street, Nerang and being Lot 132 on RP 115825, Title Reference 14138196;

(iii) 118-120 Anzac Avenue, Hillcrest and being Lot 1 on RP 140777, Title Reference 15265019; and

(iv) 122-124 Anzac Avenue, Hillcrest and being Lot 3 on RP 140777, Title Reference 15265021

be charged in favour of the applicant.

4.    The applicant have liberty to lodge caveats over the respondent's real property situate at:

(i)    16 Dirk Hartog Place, Hollywell and being described at Lot 57 on RP 160160, Title Reference 15757217;

(ii)   2 Oak Street, Nerang and being Lot 132 on RP 115825, Title Reference 14138196;

(iii) 118-120 Anzac Avenue, Hillcrest and being Lot 1 on RP 140777, Title Reference 15265019; and

(iv) 122-124 Anzac Avenue, Hillcrest and being Lot 3 on RP 140777, Title Reference 15265021.

CATCHWORDS:

PROCEDURE — JUDGMENTS AND ORDERS — COSTS — INDEMNITY COSTS — OFFERS TO SETTLE — where general position for de facto property disputes is that each party bears their own costs — where court required to consider offers to settle made under the UCPR — where UCPR r 360 provides costs sanctions in the case of offers to settle open for no less than 14 days — where offer to settle made by plaintiff no less favourable than outcome — where offer to settle only open for five days — whether offer to settle made under UCPR — whether indemnity costs should be awarded

PROCEDURE — JUDGMENTS AND ORDERS — INTEREST ON JUDGMENTS — RATE OF INTEREST — where respondent ordered to pay a sum as a result of de facto property dispute — whether interest should be ordered and in what amount

PROCEDURE — JUDGMENTS AND ORDERS — SECURITY — where respondent ordered to pay a sum as a result of de facto property dispute — where respondent had history of circumventing court orders — whether security for judgment debt should be ordered

MTP v PAH [2012] QSC 326, related

Property Law Act 1974 (Qld), ss 333(1)(e), 341(4)(f)
Uniform Civil Procedure Rules 1999 (Qld), rr 355(1), 360(1)
Civil Proceedings Act 2011 (Qld), ss 58, 59
Land Title Act 1994 (Qld), s 122(1)(e)

COUNSEL:

P Baston for the applicant

P Hackett for…

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 MTP v PAH (No 2)

Details

AGLC: MTP v PAH (No 2) [2012] QSC 368
Case: [2012] QSC 368
Decision Date: 23 November 2012

CaseChat Overview and Summary

In the case of MTP v PAH (No 2), the parties were engaged in a de facto property dispute. The applicant, MTP, sought indemnity costs against the respondent, PAH, as well as interest on the judgment sum, security for the judgment debt, and orders for costs. The dispute was heard in the court, which had to determine whether PAH's offer to settle was made under the UCPR and if it should result in indemnity costs. Additionally, the court had to decide the appropriate rate and amount of interest to be awarded and whether security for the judgment debt should be ordered, given PAH's history of circumventing court orders.

The court examined whether PAH's offer to settle complied with UCPR r 360, which requires offers to settle to be open for no less than 14 days. PAH's offer was open for only five days, leading to the conclusion that it did not comply with the UCPR. Consequently, the court awarded indemnity costs to MTP. Regarding the interest on the judgment sum, the court ordered PAH to pay interest at a specified rate. Considering PAH's history of non-compliance, the court also ordered security for the judgment debt, which involved charging certain real property owned by PAH in favour of MTP.

The court's decision was that PAH should pay the applicant's costs of the application, to be assessed. Additionally, PAH was ordered to pay interest in the sum of $10,778.04 on the judgment sum. Until PAH satisfied the judgment and the orders for costs, PAH's real property was charged in favour of MTP. PAH was also prohibited from disposing of or dealing with the charged property without MTP's consent. Furthermore, MTP was granted liberty to lodge caveats over the specified real property to prevent PAH from transferring or dealing with the property without MTP's knowledge.

Orders

Orders of the court

1. The respondent pay the applicant’s costs of this application to be assessed.

2. The respondent pay interest in the sum of $10,778.04 on the judgment sum.

3. Until such time as the respondent satisfies the judgment made on 19 September 2012 and the orders for costs made on 19 September and 22 November 2012, the respondent's real property situate at:

(i) 16 Dirk Hartog Place, Hollywell and being described at Lot 57 on RP 160160, Title Reference 15757217;

(ii) 2 Oak Street, Nerang and being Lot 132 on RP 115825, Title Reference 14138196;

(iii) 118-120 Anzac Avenue, Hillcrest and being Lot 1 on RP 140777, Title Reference 15265019; and

(iv) 122-124 Anzac Avenue, Hillcrest and being Lot 3 on RP 140777, Title Reference 15265021

be charged in favour of the applicant.

4. The applicant have liberty to lodge caveats over the respondent's real property situate at:

(i) 16 Dirk Hartog Place, Hollywell and being described at Lot 57 on RP 160160, Title Reference 15757217;

(ii) 2 Oak Street, Nerang and being Lot 132 on RP 115825, Title Reference 14138196;

(iii) 118-120 Anzac Avenue, Hillcrest and being Lot 1 on RP 140777, Title Reference 15265019; and

(iv) 122-124 Anzac Avenue, Hillcrest and being Lot 3 on RP 140777, Title Reference 15265021.

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:	MTP v PAH (No 2) [2012] QSC 368
PARTIES:	MTP (applicant) v PAH (respondent)
FILE NO/S:	3 of 2010
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	23 November 2012
DELIVERED AT:	Brisbane
HEARING DATES:	25 October and 7 November 2012
JUDGE:	Atkinson J
ORDERS:	1. The respondent pay the applicant’s costs of this application to be assessed. 2. The respondent pay interest in the sum of $10,778.04 on the judgment sum. 3. Until such time as the respondent satisfies the judgment made on 19 September 2012 and the orders for costs made on 19 September and 22 November 2012, the respondent's real property situate at: (i) 16 Dirk Hartog Place, Hollywell and being described at Lot 57 on RP 160160, Title Reference 15757217; (ii) 2 Oak Street, Nerang and being Lot 132 on RP 115825, Title Reference 14138196; (iii) 118-120 Anzac Avenue, Hillcrest and being Lot 1 on RP 140777, Title Reference 15265019; and (iv) 122-124 Anzac Avenue, Hillcrest and being Lot 3 on RP 140777, Title Reference 15265021 be charged in favour of the applicant. 4. The applicant have liberty to lodge caveats over the respondent's real property situate at: (i) 16 Dirk Hartog Place, Hollywell and being described at Lot 57 on RP 160160, Title Reference 15757217; (ii) 2 Oak Street, Nerang and being Lot 132 on RP 115825, Title Reference 14138196; (iii) 118-120 Anzac Avenue, Hillcrest and being Lot 1 on RP 140777, Title Reference 15265019; and (iv) 122-124 Anzac Avenue, Hillcrest and being Lot 3 on RP 140777, Title Reference 15265021.
CATCHWORDS:	PROCEDURE — JUDGMENTS AND ORDERS — COSTS — INDEMNITY COSTS — OFFERS TO SETTLE — where general position for de facto property disputes is that each party bears their own costs — where court required to consider offers to settle made under the UCPR — where UCPR r 360 provides costs sanctions in the case of offers to settle open for no less than 14 days — where offer to settle made by plaintiff no less favourable than outcome — where offer to settle only open for five days — whether offer to settle made under UCPR — whether indemnity costs should be awarded PROCEDURE — JUDGMENTS AND ORDERS — INTEREST ON JUDGMENTS — RATE OF INTEREST — where respondent ordered to pay a sum as a result of de facto property dispute — whether interest should be ordered and in what amount PROCEDURE — JUDGMENTS AND ORDERS — SECURITY — where respondent ordered to pay a sum as a result of de facto property dispute — where respondent had history of circumventing court orders — whether security for judgment debt should be ordered MTP v PAH [2012] QSC 326, related Property Law Act 1974 (Qld), ss 333(1)(e), 341(4)(f) Uniform Civil Procedure Rules 1999 (Qld), rr 355(1), 360(1) Civil Proceedings Act 2011 (Qld), ss 58, 59 Land Title Act 1994 (Qld), s 122(1)(e)
COUNSEL:	P Baston for the applicant P Hackett for…