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Petavrakis v Hirst & Co

Petavrakis v Hirst & Co

Case [2001] QSC 224 29 June 2001

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SUPREME COURT OF QUEENSLAND

CITATION: Arita Petavrakis v Hirst & Co. & Anor [2001] QSC 224

PARTIES: ARITA PETAVRAKIS
(plaintiff)
v
HIRST & CO. (A FIRM)
(first defendant)
MANUEL PETAVRAKIS
(second defendant)
GEORGE MANUEL PETAVRAKIS
(third defendant)

FILE NO/S: SC 3999 of 1999

DIVISION: Trial Division

PROCEEDING: Civil Application

ORIGINATING COURT:
Brisbane

DELIVERED ON: 29 June 2001

DELIVERED AT: Brisbane

HEARING DATE: 14 June 2001

JUDGE: White J

ORDER:
1.   The plaintiff have leave to discontinue the within proceedings against the second and third defendants.

2.   The plaintiff pay the second and third defendants’ costs in defending the proceedings.

3.   The applicant/plaintiff pay the respondents’/second and third defendants’ costs of and incidental to each of the applications before the court, namely, the application filed on 28 May 2001 by the third defendant, 4 June 2001 by the second defendant, and

     8 June 2001 by the applicant/plaintiff.

4.   All costs to be assessed on the indemnity basis.

CATCHWORDS:
PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS - continuation of unnecessary proceedings with no prospect of success – vexatious to commence Supreme Court proceedings, having already
commenced Family Court proceedings seeking the same relief.

Trade Practices Act 1974 ss 52, 82
Uniform Civil Procedure Rules, r 307(2), r 683

Family Law Act, 1975 ss 35, 79, 114

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)

R v Gold Coast City Council; ex parte Raysun Pty Ltd
[1971] QWN 13
J T Stratford & Son Ltd v Lindley (No 2) [1969] 1 WLR 1547
Australian Securities Commission v Aust-Home Investments Ltd (1993) 11 ACSR 136
Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
R v Ross-Jones; ex parte Green (1994) 156 CLR 185

Re Wakim; ex parte McNally (1999) 198 CLR 511

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported decision of 3 May 1991)
Colgate Palmolive v Cussons Pty Ltd (1993) 118 ALR 248
J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers – Western Australian Branch (unreported decision of 19 February 1993)

COUNSEL: Mr D Savage for the applicant/plaintiff
Mrs S Cool for the respondent/second defendant
Mr P White for the respondent/third defendant

SOLICITORS: Andersons for the plaintiff/applicant
Andrew Burrows & Associates for the respondent/second defendant
Emerson Black for the respondent/third defendant

There are three applications before the court. On 28 May 2001 the third defendant filed an application that the plaintiff’s proceedings against him be struck out with costs. On 4 June 2001 the second defendant sought a similar order in respect of the proceedings against him. On 8 June 2001 the plaintiff sought an order giving her leave to discontinue her proceedings against the first, second and third defendants.

An order was made by consent on 14 June 2001 that the plaintiff have leave to discontinue against the first defendant, a firm of solicitors, with no order as to…

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 Petavrakis v Hirst & Co

Details

AGLC: Arita Petavrakis v Hirst and Co [2001] QSC 224
Case: [2001] QSC 224
Decision Date: 29 June 2001

CaseChat Overview and Summary

In Petavrakis v Hirst & Co, the plaintiff pursued legal action against the second and third defendants, with the case being heard in the Supreme Court. The primary dispute revolved around the plaintiff's claims against these defendants, although the specifics of the underlying claims are not detailed in the provided text. The defendants sought an order for costs on an indemnity basis, arguing that the plaintiff's continuation of the proceedings was vexatious and had no reasonable prospect of success.

The court was tasked with determining whether the plaintiff's actions warranted a departure from the general rule regarding costs, particularly given that the plaintiff had already commenced proceedings in another court. The key legal issue was whether the plaintiff's conduct justified the imposition of costs on an indemnity basis, a more stringent standard than the usual "party and party" basis. This decision required a careful assessment of the plaintiff's conduct and the prospects of success of the claims.

The court found that the plaintiff's actions in continuing the proceedings were indeed vexatious and without reasonable prospects of success. Consequently, the court granted the defendants' application for costs on an indemnity basis. This decision encompassed the costs incurred in defending the initial proceedings, as well as the costs associated with the subsequent applications filed by both parties. The court's ruling emphasised the importance of avoiding unnecessary litigation and the potential consequences for parties who persist with proceedings that lack merit.

The final orders included granting the plaintiff leave to discontinue the proceedings against the second and third defendants, and mandating that the plaintiff pay the defendants' costs on an indemnity basis. This included costs associated with defending the initial proceedings and all subsequent applications, reflecting the court's determination that the plaintiff's conduct was vexatious and unjustified.

Orders

Orders of the court

1. The plaintiff have leave to discontinue the within proceedings against the second and third defendants.

2. The plaintiff pay the second and third defendants’ costs in defending the proceedings.

3. The applicant/plaintiff pay the respondents’/second and third defendants’ costs of and incidental to each of the applications before the court, namely, the application filed on 28 May 2001 by the third defendant, 4 June 2001 by the second defendant, and

8 June 2001 by the applicant/plaintiff.

4. All costs to be assessed on the indemnity basis.

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.

Citations

AGLC Citation

Arita Petavrakis v Hirst and Co [2001] QSC 224

Most Recent Citation

Create Group Pty Ltd v Frew [2008] QDC 226

Cases citing this decision · 8 of 8 shown

Zelcliff Pty Ltd v Container Exchange (Qld) Ltd
[2022] QSC 239 Para 7

…tion between the parties to determine the question of costs: Johnson v Clancy [2010] NSWSC 1301 [21](f); see also Petavrakis v Hirst & Co [2001] QSC 224 [9]; Kennedy v Griffiths [2014] QSC 43 [66]; Rushbrook v Chalmers [2015] QSC 145 [19]. At the time of discontinuance, usually it will be impracticable to assess…
WorkCover Queensland v Klinger Limited
[2022] QDC 201 Para 5

…al action between the parties to determine the question of costs: Johnson v Clancy [2010] NSWSC 1301, [21](f); see also Petavrakis v Hirst & Co [2001] QSC 224, [9]; Kennedy v Griffiths [2014] QSC 43, [66]; Rushbrook v Chalmers [2015] QSC 145, [19]. At the time of discontinuance, usually it will be impracticable t…
Fairfield Services Pty Ltd (in liq) v Leggett
[2020] QSC 183 Para 5

…The plaintiffs relied on Petavrakis v Hirst & Co [2001] QSC 224 at [34] (White J); Rathie v ING Life Ltd [2003] QSC 429 at [44] (Mullins J); Kennedy v Griffiths [2014] QSC 43 at [66] (Boddice J); and Rushbrook v Chalmers [2015] QSC 145 at [19] (Boddice J) in support of the proposition that the general principles…
Barnett & Anor v Pirrone & Anor
[2019] QCATA 166 Para 2

…f any allegations between the parties of a substantive kind. The decision is based on matters of procedure and reference to facts not in dispute. [11][2001] QSC 224, [46].…
Barclay v Oliver Hume South East Queensland Pty Ltd
[2016] QSC 160 Para 6

…The legal test that it appears I should apply is that set out by White J, as her Honour then was, in Arita Petavrakis v Hirst & Co. & Anor [2001] QSC 224, where her Honour said at [9]: “It is neither appropriate nor possible to decide contested factual issues in an application of this kind and the costs of attemp…
Foster v Carney
[2009] QDC 299 Para 1

…shed to progress with and any reasons why he no longer wanted to continue with his application before the court: see Petavrakis v Hirst & Co & Anor [2001] QSC 224, where Her Honour Justice White has set out some helpful guidance on this issue in respect of r 307(2) of the UCPR.…
Create Group Pty Ltd v. Frew
[2008] QDC 226

…Mr Mills submits that his client's position is different from that of the litigant in Petavrakis v. Hirst & Co [2001] QSC 224. White J determined that that lady had no proper basis for proceeding in the Supreme Court in the light of the existence of a proceeding in the Family Court in which all the relief sought…
Rathie v ING Life Ltd
[2003] QSC 429 Para 1

…ether it was reasonable of the defendant to bring the third party proceeding in the light of the plaintiff’s claims: Petavrakis v Hirst & Co & Anor [2001] QSC 224 at para [9].…

View all 8 citing cases →

Cases cited in this decision · 6 of 6 shown

Re Wakim; Ex parte McNally
[1999] HCA 27

…136 Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 R v Ross-Jones; ex parte Green (1994) 156 CLR 185 Re Wakim; ex parte McNally (1999) 198 CLR 511 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreporte…
Colgate-Palmolive Co v Cussons Pty ltd
[1993] FCA 801

…81 ALR 397 Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported decision of 3 May 1991) Colgate Palmolive v Cussons Pty Ltd (1993) 118 ALR 248 J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers – Western Australian Branch (unreported decision of 19 February 1993) COUNSEL: Mr D Sava…
Australian Securities Commission v Aust-Home Investments Ltd
[1993] FCA 585 Para 1

…aysun Pty Ltd [1971] QWN 13; J T Stratford & Son Ltd v Lindley (No 2) [1969] 1 WLR 1547; Australian Securities Commission v Aust-Home Investments Ltd (1993) 11 ACSR 136 at 143.…
Ascot Investments Pty Ltd v Harper
[1981] HCA 44 Para 1

…of the jewellery) for the return of the wife’s jewellery, the right to possession of which was never disputed by any of the defendants, see Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 at 354 and R v Ross-Jones; ex parte Green (1994) 156 CLR 185 at 200-1.…
Ascot Investments Pty Ltd v Harper
[1981] HCA 1 Para 1

…the wife’s jewellery, the right to possession of which was never disputed by any of the defendants, see Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 at 354 and R v Ross-Jones; ex parte Green (1994) 156 CLR 185 at 200-1.…
[1969] 1 WLR 1547
[1969] 1 WLR 1547 Para 1

…applicant no longer wishes to progress, R v Gold Coast City Council; ex parte Raysun Pty Ltd [1971] QWN 13; J T Stratford & Son Ltd v Lindley (No 2) [1969] 1 WLR 1547; Australian Securities Commission v Aust-Home Investments Ltd (1993) 11 ACSR 136 at 143.…

Legislation cited in this decision · 2

Trade Practices Act 1974 (Cth)
52, 82 2 mentions
Jurisdiction of Courts (Cross-vesting) Act 1987 (TAS)
1 mention (from Para 1)

CITATION:	Arita Petavrakis v Hirst & Co. & Anor [2001] QSC 224
PARTIES:	ARITA PETAVRAKIS (plaintiff) v HIRST & CO. (A FIRM) (first defendant) MANUEL PETAVRAKIS (second defendant) GEORGE MANUEL PETAVRAKIS (third defendant)
FILE NO/S:	SC 3999 of 1999
DIVISION:	Trial Division
PROCEEDING:	Civil Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	29 June 2001
DELIVERED AT:	Brisbane
HEARING DATE:	14 June 2001
JUDGE:	White J
ORDER:	1. The plaintiff have leave to discontinue the within proceedings against the second and third defendants. 2. The plaintiff pay the second and third defendants’ costs in defending the proceedings. 3. The applicant/plaintiff pay the respondents’/second and third defendants’ costs of and incidental to each of the applications before the court, namely, the application filed on 28 May 2001 by the third defendant, 4 June 2001 by the second defendant, and 8 June 2001 by the applicant/plaintiff. 4. All costs to be assessed on the indemnity basis.
CATCHWORDS:	PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS - continuation of unnecessary proceedings with no prospect of success – vexatious to commence Supreme Court proceedings, having already commenced Family Court proceedings seeking the same relief. Trade Practices Act 1974 ss 52, 82 Uniform Civil Procedure Rules, r 307(2), r 683 Family Law Act, 1975 ss 35, 79, 114 Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) R v Gold Coast City Council; ex parte Raysun Pty Ltd [1971] QWN 13 J T Stratford & Son Ltd v Lindley (No 2) [1969] 1 WLR 1547 Australian Securities Commission v Aust-Home Investments Ltd (1993) 11 ACSR 136 Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 R v Ross-Jones; ex parte Green (1994) 156 CLR 185 Re Wakim; ex parte McNally (1999) 198 CLR 511 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported decision of 3 May 1991) Colgate Palmolive v Cussons Pty Ltd (1993) 118 ALR 248 J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers – Western Australian Branch (unreported decision of 19 February 1993)
COUNSEL:	Mr D Savage for the applicant/plaintiff Mrs S Cool for the respondent/second defendant Mr P White for the respondent/third defendant
SOLICITORS:	Andersons for the plaintiff/applicant Andrew Burrows & Associates for the respondent/second defendant Emerson Black for the respondent/third defendant