Nicholas v Sambrook Grant Lawyers

DISTRICT COURT OF QUEENSLAND

CITATION:

Nicholas & Anor v Sambrook Grant Lawyers & Anor [2017] QDC 307

PARTIES:

ANITA GLADYS NICHOLAS
(first plaintiff)

and

ANITA GLADYS NICHOLAS (NEE STEVENS) & BRADLEY SMOLING AS TRUSTEE OF THE GEOFFREY NICHOLAS FORTRESS TRUST
(second plaintiff)

v

SAMBROOK GRANT LAWYERS (ABN5700519089)
(first defendant)

and

ADAM MARK SAMBROOK
(second defendant)

FILE NO/S:

D313/2016

DIVISION:

Civil

PROCEEDING:

Application for Costs

ORIGINATING COURT:

Southport

DELIVERED ON:

15 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

1 December 2017

JUDGE:

Muir DCJ

ORDER:

1.   The plaintiffs pay the defendants’ costs of the defendants’ application filed 9 November 2017

2.   There is no order as to costs in relation to the plaintiffs’ application filed 28 November 2017

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW THE EVENT– Where plaintiffs and defendants resolved substantive applications before the court by agreed consent orders – where plaintiffs submitted costs should be reserved – where defendants submitted plaintiffs should pay the costs of and incidental to both applications – what are the appropriate costs orders in the circumstances

Succession Act1981 (Qld) s 41
Uniform Civil Procedure Rules 1999 (Qld) r 232(2), 223, 320, 468, 681, 702(1)

Alborn v Stephens [2010] QCA 58, considered
Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 3) [2003] 1 Qd R 26, followed
Mio Art Pty Ltd v Macequest Pty Ltd & Anor No. 2 [2013] QSC 271, followed

COUNSEL:

D.A. Savage QC with B Strangman for the plaintiffs

R.P.S. Jackson QC for the defendants

SOLICITORS:

Lee Lawyers for the plaintiffs

Bartley Cohen for the defendants

The application

1. On 1 December 2017, I made orders by consent, resolving the substantive issues in relation to two applications listed for hearing before me that day. The first application was by the defendants for orders for disclosure under Uniform Civil Procedure Rules 1999 (Qld) r 223.[1] The second application was by the plaintiffs for orders for referral to mediation under UCPR r 320 and for an expedited trial under UCPR r 468.[2]

   [1]Application filed 9 November 2017.

   [2]Application filed 28 November 2017.

1. The sole issue for my determination remained the appropriate costs orders to be made in light of the consent orders.[3]

   [3]There was some to and froing about the most just and expeditious way to deal with the costs arguments. This included whether leave ought to be given to the defendants to file and read a nine page affidavit of Rebecca Louise Scott and if so, whether it was necessary to stand the matter down or adjourn the hearing of the argument as to costs. The opportunity to file written outlines in relation to costs or to rely on further material was also given. Ultimately Ms Scott’s affidavit was not relied upon and no adjournment was sought by either party and the respective costs arguments were ventilated before me by way of oral argument on 1 December 2017.

1. The defendants submitted that the appropriate costs…