PJM v AML (No 2) - [2018] QSC 204

SUPREME COURT OF QUEENSLAND

PUBLISHED CITATION:

PJM & Ors v AML & Anor (No 2) [2018] QSC 204

PARTIES:

PJM
(first applicant)
PKM
(second applicant)
PJM AS LITIGATION GUARDIAN FOR PLM
(third applicant)

v
AML
(first respondent)
ACL

(second respondent)

FILE NO:

6551 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

6 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

Decided on the papers

JUDGE:

Davis J

ORDER:

1.   The applicants’ solicitors Shine Lawyers forthwith pay the first respondent’s costs of the application on the indemnity basis, fixed at $37,255.57.

2.   The applicants’ solicitors Shine Lawyers pay the second respondent’s costs of the application to be assessed on the indemnity basis, or as agreed, save those costs ordered to be paid on 27 June 2018.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – PARTIES AND NON-PARTIES – LEGAL PRACTITIONER – where the respondents were successful in the principal application – where findings were made about shortcomings in the applicants’ solicitors’ work – where the respondents seek indemnity costs and one seeks fixed costs – whether costs should be ordered against the applicants’ solicitors – whether costs should be fixed – whether two counsel should be allowed

Uniform Civil Procedure Rules 1999 (Qld) r 687

EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59, cited
Hobbs & Anor v Oildrive (No 2) [2008] QSC 52, cited
Mio Art Pty Ltd v Macequest Pty Ltd & Ors (No 2) [2013] QSC 271, cited
PJM & Ors v AML and Anor [2018] QSC 187

Stanley v Phillips (1966) 115 CLR 470, cited

COUNSEL:

M Eliadis for the applicants

M Horvath with B Buckley for the first respondent

C J Kanther (solicitor) for the second respondent

SOLICITORS:

Shine Lawyers for the applicants

Corney & Lind Lawyers for the first respondent

BTLawyers for the second respondent

The applicants applied for a freezing order against the first respondent’s interest in a house in which the second respondent also had an interest. No claim was made against the second respondent, who was only a party to the application because of her interest in the house.
On 17 August 2018 I made the following orders:
1.Application dismissed.
2.The respondents file and serve any material and written submissions on costs by 4 pm on 24 August 2018.
3.The applicants file and serve any material and written submissions on costs by 4 pm on 31 August 2018.
4.The respondents file and serve any material and written submissions in reply by 4 pm on 4 September 2018.
5.The issue of costs be decided without oral argument.[1]
[1] PJM & Ors v AML and Anor [2018] QSC 187.
In compliance with the directions, both respondents filed and served written submissions on costs by the date set for those submissions, namely 24 August 2018.
Both respondents sought costs on an indemnity basis. The first respondent sought to have the costs fixed at $37,255.57. That claim was supported by an affidavit which explained…

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 PJM v AML (No 2)

Details

AGLC: PJM v AML (No 2) [2018] QSC 204
Case: [2018] QSC 204
Decision Date: 6 September 2018

CaseChat Overview and Summary

The case of PJM v AML (No 2) involved an application for indemnity costs against the solicitors of the applicants, Shine Lawyers, by the respondents. The applicants had been successful in the principal application, but the court found there were shortcomings in the solicitors' work, which led to the respondents seeking indemnity costs and one respondent seeking fixed costs. The court was required to determine whether costs should be ordered against the applicants' solicitors, whether those costs should be fixed, and whether two counsel should be allowed. The court further had to assess the appropriate amount of costs, if any, to be awarded.

The primary legal issue before the court was whether the applicants' solicitors were liable for the costs incurred by the respondents due to the shortcomings identified. The court had to consider whether the shortcomings in the solicitors' work were sufficient to warrant an order for indemnity costs and, if so, whether the costs should be fixed. Additionally, the court had to decide whether two counsel should be allowed for the respondents given the nature of the application.

The court found that the applicants' solicitors were indeed liable for the respondents' costs due to the identified shortcomings. It determined that the costs should be awarded on an indemnity basis and fixed at $37,255.57 for the first respondent. For the second respondent, the costs of the application were to be assessed on the indemnity basis, or as agreed, excluding those costs already ordered on 27 June 2018. The court did not see grounds to allow two counsel for the respondents in this instance.

The final orders of the court were that the applicants' solicitors, Shine Lawyers, must pay the first respondent’s costs of the application on the indemnity basis, fixed at $37,255.57. For the second respondent, the costs of the application were to be assessed on the indemnity basis or as agreed, excluding those costs already ordered on 27 June 2018. No costs were awarded for two counsel.

Orders

Orders of the court

1. The applicants’ solicitors Shine Lawyers forthwith pay the first respondent’s costs of the application on the indemnity basis, fixed at $37,255.57.

2. The applicants’ solicitors Shine Lawyers pay the second respondent’s costs of the application to be assessed on the indemnity basis, or as agreed, save those costs ordered to be paid on 27 June 2018.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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PUBLISHED CITATION:	PJM & Ors v AML & Anor (No 2) [2018] QSC 204
PARTIES:	PJM (first applicant) PKM (second applicant) PJM AS LITIGATION GUARDIAN FOR PLM (third applicant) v AML (first respondent) ACL (second respondent)
FILE NO:	6551 of 2018
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	6 September 2018
DELIVERED AT:	Brisbane
HEARING DATE:	Decided on the papers
JUDGE:	Davis J
ORDER:	1. The applicants’ solicitors Shine Lawyers forthwith pay the first respondent’s costs of the application on the indemnity basis, fixed at $37,255.57. 2. The applicants’ solicitors Shine Lawyers pay the second respondent’s costs of the application to be assessed on the indemnity basis, or as agreed, save those costs ordered to be paid on 27 June 2018.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – PARTIES AND NON-PARTIES – LEGAL PRACTITIONER – where the respondents were successful in the principal application – where findings were made about shortcomings in the applicants’ solicitors’ work – where the respondents seek indemnity costs and one seeks fixed costs – whether costs should be ordered against the applicants’ solicitors – whether costs should be fixed – whether two counsel should be allowed Uniform Civil Procedure Rules 1999 (Qld) r 687 EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59, cited Hobbs & Anor v Oildrive (No 2) [2008] QSC 52, cited Mio Art Pty Ltd v Macequest Pty Ltd & Ors (No 2) [2013] QSC 271, cited PJM & Ors v AML and Anor [2018] QSC 187 Stanley v Phillips (1966) 115 CLR 470, cited
COUNSEL:	M Eliadis for the applicants M Horvath with B Buckley for the first respondent C J Kanther (solicitor) for the second respondent
SOLICITORS:	Shine Lawyers for the applicants Corney & Lind Lawyers for the first respondent BTLawyers for the second respondent