Picamore Pty Ltd v Challen - [2013] QDC 258

DISTRICT COURT OF QUEENSLAND

CITATION:

Picamore Pty Ltd v Challen [2013] QDC 258

PARTIES:

PICAMORE PTY LTD ACN 061423578
(Applicant)

v

PETER LESLIE CHALLEN TRADING AS HAWTHORN CUPPAIDGE AND BADGERY AND GARLAND HAWTHORN AND BRAHE ABN 96 335 661 027
(Respondent)

FILE NO/S:

2479/13

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

16 October 2013

DELIVERED AT:

Rockhampton

HEARING DATE:

8 October 2013

JUDGE:

Smith DCJ

ORDER:

1.   Application allowed.

2.   The order of the District Court in this matter dated 9 August 2013 is set aside to the extent that the appointment of the costs assessor is stayed until further or earlier order.

3.   The Respondent is to pay the Applicant’s costs of and incidental to this application on the standard basis as agreed or assessed.

4.   Liberty to apply.

5.   I will hear the parties on the directions proposed in these reasons.

CATCHWORDS:

PROCEDURE- whether order can be re-opened- whether party “absent” under Rule 667(2)(a) Uniform Civil Procedure Rules 1999 (Q)

COSTS- whether bills interim or final bills under Legal Profession Act 2007 (Q)

Legal Profession Act 2007 (Q) s 335, 339

Uniform Civil Procedure Rules 1999 (Q) rr 490, 667, 681, 743, 743A, 743D, 743E, 743G, Forms 49, 50 and 60.

AMA v CDK & Ors [2009] QSC 287

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300

Bailey v Marinoff (1971) 125 CLR 529

Challen v Golder Associates Pty Ltd [2012] QCA 307

De L v Director-General of Community Services (NSW) (1997) 190 CLR 207

Frith v Schubert [2010] QSC 444

Gillies v Dibbetts [2001] 1 Qd R 596

Sproule v Long [2001] 2 Qd R 335

Stubberfield v Lippiat & Co [2002] QCA 541

Wilkinson v Wilkinson [1963] P 1

COUNSEL:

Mr D. de Jersey for the Applicant

Solicitors for the Respondent

SOLICITORS:

Plastiras Lawyers for the Applicant

Hawthorn Cuppaidge and Badgery for the Respondent

Introduction

This is an application by the Respondent Hawthorn Cuppaidge and Badgery (“HCB”) pursuant to UCPR r 667(2)(a).

This rule allows a court in its discretion to set aside an order at any time after the order was made if the order was made in the absence of a party.

It is necessary then to set out the history of the matter to see whether this sub-rule has been engaged.

Background to the order

On 9 August 2013 a Judge of the District Court in Brisbane ordered that a costs assessor be appointed to carry out an assessment of the legal costs payable by the Applicant (“Picamore”) to HCB pursuant to Chapter17A Part 4 UCPR and s 335 of the Legal Profession Act 2007 (Qld) (“LPA”).

It was further ordered that Robyn Davis a costs assessor carry out the assessment of costs.

There was further a direction that Picamore make the solicitor’s file (maintained by HCB) available to the costs assessor for the purpose of carrying out the costs assessment.

The application for the order for the appointment of the costs assessor was filed…

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 Picamore Pty Ltd v Challen

Details

AGLC: Picamore Pty Ltd v Challen [2013] QDC 258
Case: [2013] QDC 258
Decision Date: 16 October 2013

CaseChat Overview and Summary

Picamore Pty Ltd brought an application against Challen in the Queensland Civil and Administrative Tribunal seeking to have an order set aside and for the costs of the application to be paid by Challen. The application was heard by Judge Byrne who found in favour of Picamore. Challen sought to appeal the decision of Judge Byrne to the Supreme Court. Challen applied to have the order of the District Court set aside, arguing that the order could be reopened as Challen was absent from the proceedings under Rule 667(2)(a) of the Uniform Civil Procedure Rules 1999 (Q). Challen also sought to have the costs of the application paid by Picamore, arguing that the bills were not interim bills under the Legal Profession Act 2007 (Q) and that therefore Picamore were not entitled to recover their costs under that Act.

The court considered whether Challen was absent from the proceedings within the meaning of Rule 667(2)(a) of the Uniform Civil Procedure Rules 1999 (Q). The court found that Challen was not absent from the proceedings as Challen had been notified of the proceedings and had been given an opportunity to be heard. The court also considered whether the bills were interim bills under the Legal Profession Act 2007 (Q). The court found that the bills were not interim bills as they were not prepared in accordance with the requirements of the Act. The court found that Picamore were not entitled to recover their costs under the Act and that Challen was therefore not liable to pay the costs of the application.

The application was allowed and the order of the District Court was set aside to the extent that the appointment of the costs assessor was stayed until further or earlier order. The respondent was to pay the applicant’s costs of and incidental to this application on the standard basis as agreed or assessed. The parties were to be heard on the directions proposed in the reasons.

Orders

Orders of the court

1. Application allowed.

2. The order of the District Court in this matter dated 9 August 2013 is set aside to the extent that the appointment of the costs assessor is stayed until further or earlier order.

3. The Respondent is to pay the Applicant’s costs of and incidental to this application on the standard basis as agreed or assessed.

4. Liberty to apply.

5. I will hear the parties on the directions proposed in these reasons.

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:	Picamore Pty Ltd v Challen [2013] QDC 258
PARTIES:	PICAMORE PTY LTD ACN 061423578 (Applicant) v PETER LESLIE CHALLEN TRADING AS HAWTHORN CUPPAIDGE AND BADGERY AND GARLAND HAWTHORN AND BRAHE ABN 96 335 661 027 (Respondent)
FILE NO/S:	2479/13
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	16 October 2013
DELIVERED AT:	Rockhampton
HEARING DATE:	8 October 2013
JUDGE:	Smith DCJ
ORDER:	1. Application allowed. 2. The order of the District Court in this matter dated 9 August 2013 is set aside to the extent that the appointment of the costs assessor is stayed until further or earlier order. 3. The Respondent is to pay the Applicant’s costs of and incidental to this application on the standard basis as agreed or assessed. 4. Liberty to apply. 5. I will hear the parties on the directions proposed in these reasons.
CATCHWORDS:	PROCEDURE- whether order can be re-opened- whether party “absent” under Rule 667(2)(a) Uniform Civil Procedure Rules 1999 (Q) COSTS- whether bills interim or final bills under Legal Profession Act 2007 (Q) Legal Profession Act 2007 (Q) s 335, 339 Uniform Civil Procedure Rules 1999 (Q) rr 490, 667, 681, 743, 743A, 743D, 743E, 743G, Forms 49, 50 and 60. AMA v CDK & Ors [2009] QSC 287 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 Bailey v Marinoff (1971) 125 CLR 529 Challen v Golder Associates Pty Ltd [2012] QCA 307 De L v Director-General of Community Services (NSW) (1997) 190 CLR 207 Frith v Schubert [2010] QSC 444 Gillies v Dibbetts [2001] 1 Qd R 596 Sproule v Long [2001] 2 Qd R 335 Stubberfield v Lippiat & Co [2002] QCA 541 Wilkinson v Wilkinson [1963] P 1
COUNSEL:	Mr D. de Jersey for the Applicant Solicitors for the Respondent
SOLICITORS:	Plastiras Lawyers for the Applicant Hawthorn Cuppaidge and Badgery for the Respondent