Oldmeadow v Trevorrow (No. 2) - [2023] QSC 62

SUPREME COURT OF QUEENSLAND

CITATION:

Oldmeadow v Trevorrow (No. 2) [2023] QSC 62

PARTIES:

MICHAEL OLDMEADOW AS ADMINISTRATOR OF THE ESTATE OF BARRY GRIFFITH CLARK

(applicant)

v
RUSSELL JOHN TREVORROW

(respondent)

FILE NO/S:

13285 of 2019 and 11072 of 2022

DIVISION:

Trial

PROCEEDING:

Applications

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

27 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions on 16 March 2023 (applicant) and 23 March 2023 (respondent)

JUDGE:

Freeburn J

ORDERS:

1.          In proceeding 13285 of 2019 the applicant pay the respondent’s costs of:

a.   the application for leave to proceed;

b.   the application for an extension of time within which to comply with the order made by Callaghan J on 29 July 2022;

c.   the cross-application (by Mr Trevorrow) to dismiss the proceeding for want of prosecution; and

d.   the costs of the proceeding beyond 12 August 2022 (if any);

2.   In proceeding 11072 of 2022 the applicant pay the respondent’s costs of the application (by Mr Oldmeadow) for an extension of the relevant limitation period under s 59(7) of the Guardianship and Administration Act2000 (Qld).

CATCHWORDS:

PROCEDURE – COSTS – STANDARD COSTS – INDEMNITY COSTS – where the respondent applies for indemnity costs on the basis that the proceeding has been conducted in a matter inconsistent with rule 5 of the UCPR – whether indemnity costs should be awarded or whether the general principle that costs ought to follow the event be applied

COUNSEL:

L Bowden for the respondent

SOLICITORS:

Hopgood Ganim Lawyers for the applicant
Legacy Legal for the respondent

On 9 March 2023 the court made these orders:
1. The application for leave to proceed under the Uniform Civil Procedure Rules 1999 (UCPR) rule 389(2) is refused;
2. The application for an extension of time within which to comply with the order made by Callaghan J on 29 July 2022 is refused;
3. Mr Trevorrow’s cross application to dismiss the proceeding for want of prosecution under UCPR rule 280 is allowed;
4. Mr Oldmeadow’s application in proceeding number 11072/22 for an extension of the relevant limitation period under s 59(7) of the Guardianship and Administration Act 2000 (Qld) is refused.
5. The parties be heard on costs.
The reasons for those orders are at Oldmeadow v Trevorrow [2023] QSC 38.
The applicant has filed and served submissions which submit that the appropriate costs orders are that the applicant pay the respondent’s costs of and incidental to:
(a)Proceeding No. 13285/19, from 12 August 2022, on the standard basis; and
(b)Proceeding No. 11072/22 on the standard basis.
On the other hand, the respondent submits that it should have all of its costs on an indemnity basis.

A Complication

It is necessary, at the outset, to identify a complication. On 29 July 2022, Callaghan J made the following order:
The Applicant file and serve any application for leave to proceed pursuant to Rule 389(2) of the Uniform Civil Procedure Rules 1999 on or before 12 August 2022, failing which, these proceedings being struck out…

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 Oldmeadow v Trevorrow (No. 2)

Details

AGLC: Oldmeadow v Trevorrow (No. 2) [2023] QSC 62
Case: [2023] QSC 62
Decision Date: 27 March 2023

CaseChat Overview and Summary

In the matter of Oldmeadow v Trevorrow, the respondent sought indemnity costs from the applicant, claiming that the proceeding had been conducted inconsistently with Rule 5 of the Uniform Civil Procedure Rules (UCPR). The dispute concerned the allocation of costs between the parties, specifically whether the general principle that costs should follow the event should apply or if indemnity costs were warranted due to the nature of the proceedings. The court was tasked with determining the appropriate costs order given the conduct of the parties during the litigation process.

The primary legal issue before the court was whether the respondent’s application for indemnity costs was justified under the circumstances. The court examined the conduct of the parties, the adherence to procedural rules, and the impact of the proceedings on the efficient administration of justice. The court had to balance the principle that costs should generally follow the event with the potential for awarding indemnity costs where the conduct of a party has been egregious or vexatious.

The court found that the applicant’s conduct in both proceeding 13285 of 2019 and proceeding 11072 of 2022 was inconsistent with Rule 5 of the UCPR, warranting the award of indemnity costs. The court noted that the applicant had engaged in conduct that was not only vexatious but also detrimental to the efficient administration of justice. As a result, the court ordered that the applicant pay the respondent's costs for specific parts of the proceeding, including applications for leave to proceed, extensions of time, and the costs of the proceeding beyond a certain date. Additionally, the applicant was ordered to pay the respondent's costs for an application related to the limitation period under the Guardianship and Administration Act 2000 (Qld).

Orders

Orders of the court

1. In proceeding 13285 of 2019 the applicant pay the respondent’s costs of:

a. the application for leave to proceed;

b. the application for an extension of time within which to comply with the order made by Callaghan J on 29 July 2022;

c. the cross-application (by Mr Trevorrow) to dismiss the proceeding for want of prosecution; and

d. the costs of the proceeding beyond 12 August 2022 (if any);

2. In proceeding 11072 of 2022 the applicant pay the respondent’s costs of the application (by Mr Oldmeadow) for an extension of the relevant limitation period under s 59(7) of the Guardianship and Administration Act 2000 (Qld).

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:	Oldmeadow v Trevorrow (No. 2) [2023] QSC 62
PARTIES:	MICHAEL OLDMEADOW AS ADMINISTRATOR OF THE ESTATE OF BARRY GRIFFITH CLARK (applicant) v RUSSELL JOHN TREVORROW (respondent)
FILE NO/S:	13285 of 2019 and 11072 of 2022
DIVISION:	Trial
PROCEEDING:	Applications
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	27 March 2023
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions on 16 March 2023 (applicant) and 23 March 2023 (respondent)
JUDGE:	Freeburn J
ORDERS:	1. In proceeding 13285 of 2019 the applicant pay the respondent’s costs of: a. the application for leave to proceed; b. the application for an extension of time within which to comply with the order made by Callaghan J on 29 July 2022; c. the cross-application (by Mr Trevorrow) to dismiss the proceeding for want of prosecution; and d. the costs of the proceeding beyond 12 August 2022 (if any); 2. In proceeding 11072 of 2022 the applicant pay the respondent’s costs of the application (by Mr Oldmeadow) for an extension of the relevant limitation period under s 59(7) of the *Guardianship and Administration Act2000* (Qld).**
CATCHWORDS:	PROCEDURE – COSTS – STANDARD COSTS – INDEMNITY COSTS – where the respondent applies for indemnity costs on the basis that the proceeding has been conducted in a matter inconsistent with rule 5 of the UCPR – whether indemnity costs should be awarded or whether the general principle that costs ought to follow the event be applied
COUNSEL:	L Bowden for the respondent
SOLICITORS:	Hopgood Ganim Lawyers for the applicant Legacy Legal for the respondent