Nalborczyq v Gross

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Nalborczyq v Gross & Ors [2012] QMC 12

PARTIES:

DANIEL EDWARD NALBORCZYQ

(plaintiff)

v

SHANE NORMAN GROSS

(first defendant)

JESTLEY PTY LTD TRADING AS BROSNAN ELECTRONICS

(second defendant)

ROBERT EDWARD BROSNAN

(third defendant)

FILE NO/S:

M28/10

DIVISION:

Magistrates Courts

PROCEEDING:

Claim – Application for assessment of costs

ORIGINATING COURT:

Magistrates Court at Tully

DELIVERED ON:

1 February 2012

DELIVERED AT:

Tully

HEARING DATE:

On the papers

MAGISTRATE:

Brassington JM

ORDER:

(1)  The Plaintiff is to pay the second and third Defendants costs on the standard basis to be agreed.

(2)  Failing agreement the second and third Defendants file material for the Court to fix costs.

CATCHWORDS:

CIVIL LITIGATION – COSTS – assessment of costs for defendant after claim dismissed - indemnity costs

Uniform Civil Procedure Rules 1999, r 361, r 683(3), r 703

COUNSEL:

B Gillan for plaintiff

SOLICITORS:

Rodgers Barnes & Green Lawyers for second and third defendants

INTRODUCTION

1. On 22 September 2010 Daniel Nalborczyk (the Plaintiff) filed a claim in the Tully Magistrates Court claiming $5,963.68 in damages for negligence. The first Defendant, Shane Norman Gross, was the driver of a motor vehicle that collided with the Plaintiff’s motor vehicle causing the Plaintiff’s motor vehicle to be essentially ‘written off’. The First Defendant’s motor vehicle was alleged to be on the wrong side of the road when it collided with the Plaintiff’s vehicle. Particulars of negligence alleged included that the First Defendant drove with a blood alcohol level of 0.154. The Statement of Claim alleged the First Defendant was the employee of Jestley Pty Ltd trading as Brosnan Electronics (the second Defendant) and was driving with the authority of the second Defendant. The motor vehicle was registered as owned by Robert Brosnan (the third Defendant) and the Statement of Claim also alleged that the First Defendant drove the motor vehicle with “the authority and under the agency and on behalf of the Third Defendant”.

1. On 31 August 2001 I made a consent order dismissing the Plaintiff’s claim and further ordering “the Plaintiff pay the second and third Defendants cost of the proceeding to be agreed, or failing agreement, either party be at liberty to apply to the Court for an order relating to costs.”

1. Agreement could not be reached and on 24 October 2011 an application for assessment of costs was made. By agreement and in accordance with the philosophy of the Uniform Civil Procedure Rules (the UCPR) the matter was heard on the papers with both the Plaintiff and the second and third Defendants’ (the applicant) providing written submissions. For convenience I will continue to refer to the applicant as the second and third Defendant.

THE SUBMISSIONS

1. The second and third Defendants’ submit that a costs order should be made on an indemnity basis as:

(1)        the proceedings against the second and third Defendant were continued in “wilful disregard of the known facts”

(2)        there was unreasonable conduct on the part of the applicant

(3) the Plaintiff obtained a Judgment…