Plante v James

Case [2011] QCA 109

SUPREME COURT OF QUEENSLAND

CITATION:

Plante & Anor v James [2011] QCA 109

PARTIES:

GEOFFREY JAMES PLANTE
(first applicant)
DAMIEN JOHN FERGUSON
(second applicant)
v
BRUCE HUME JAMES
(respondent)

FILE NO/S:

Appeal No 13527 of 2010
DC No 101 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

31 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

4 May 2011

JUDGES:

Margaret McMurdo P, Muir and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The applicants be granted leave to appeal. 1.   

The appeal be allowed. 2.   

Paragraph 1 of the order made on 18 November 2010 be varied so that it provide: “The plaintiff pay the defendant’s costs of and incidental to the proceedings at first instance on the indemnity basis”.3.   

The respondent pay the applicants’ costs of and incidental to the hearing of 17 May 2010 and of the appeal.4.   

CATCHWORDS:

PROCEDURE – COSTS – JURISDICTION – PERSONS NOT PARTIES TO PROCEEDINGS – where the primary judge ordered that the applicant directors be jointly and severally liable with the plaintiff company to pay the respondent’s costs – where the applicants were not parties to the proceeding – where the plaintiff was presumed to be unable to meet a judgment – where the respondent provided notice of its intention to make a non-party costs application three weeks after the substantive judgment and only one day before the hearing of the application – where the primary judge found that the applicants had defended claims that they could not have reasonably expected to succeed upon – where the judgment sum, excluding interest, was less than half of the amount claimed by the respondent – whether the plaintiff’s inability to pay the judgment debt was brought about by the applicant’s wrongdoing – whether the applicants acted in bad faith – whether the primary judge’s discretion to award costs against non-parties miscarried

District Court of Queensland Act 1967 (Qld), s 118(3)
Uniform Civil Procedure Rules 1999 (Qld), r 680, r 681, r 682, r 689(1), r 766(1)(d)

Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation (2001) 179 ALR 406; [2001] HCA 26, cited
Beach Retreat Pty Ltd v Mooloolaba Yacht Club Marina Ltd [2009] 2 Qd R 356; [2009] QSC 84, cited
Burns v State of Queensland & Croton [2007] QCA 240, considered
Duskwood Pty Ltd v Bellara Willows Pty Ltd [2001] WASC 281, cited
Ferguson v O’Neill [1943] VLR 30; [1943] VicLawRp 3, cited
FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Individual Homes v MacBreams Investments, unreported, High Court of Justice Chancery Division, 23 October 2002, cited
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43, cited

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Details
AGLC
Plante v James [2011] QCA 109
Case
[2011] QCA 109
Decision Date

CaseChat Overview and Summary

In the matter of Plante v James, the applicants sought leave to appeal against a costs order made by the primary judge. The primary judge had ordered the applicants, who were directors of the plaintiff company, to be jointly and severally liable with the plaintiff for the respondent's costs. The applicants were not parties to the proceeding and were arguing that the primary judge's order was an error of law. The court was required to decide whether the primary judge's order miscarried, whether the plaintiff's inability to pay the judgment debt was brought about by the applicant's wrongdoing, and whether the applicants acted in bad faith.

The court found that the primary judge's discretion to award costs against non-parties miscarried because the applicants were not parties to the proceeding. The court also found that the plaintiff's inability to pay the judgment debt was not brought about by the applicant's wrongdoing, and that the applicants did not act in bad faith. The court noted that the amount of the judgment sum, excluding interest, was less than half of the amount claimed by the respondent, and that the respondent provided notice of its intention to make a non-party costs application only one day before the hearing of the application. The court held that the primary judge's order was an error of law and that the applicants were entitled to have the order varied.

The court granted the applicants leave to appeal and allowed the appeal. The court varied the primary judge's order to provide that the plaintiff pay the defendant's costs of and incidental to the proceedings at first instance on the indemnity basis. The court also ordered that the respondent pay the applicants' costs of and incidental to the hearing of 17 May 2010 and of the appeal. The court held that the primary judge's order was an error of law and that the applicants were entitled to have the order varied. The court further held that the applicants were not liable for the respondent's costs and that the plaintiff was liable for the costs of the proceedings at first instance.

Orders

Orders of the court

The applicants be granted leave to appeal. 1.

The appeal be allowed. 2.

Paragraph 1 of the order made on 18 November 2010 be varied so that it provide: “The plaintiff pay the defendant’s costs of and incidental to the proceedings at first instance on the indemnity basis”.3.

The respondent pay the applicants’ costs of and incidental to the hearing of 17 May 2010 and of the appeal.4.

Background

Background to the litigation

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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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