Pott v Clayton Utz - [2016] QDC 39

DISTRICT COURT OF QUEENSLAND

CITATION:

Pott v Clayton Utz [2016] QDC 39

PARTIES:

CECILIA KIT-YING POTT (AS THE EXECUTOR OF THE ESTATE OF BRYAN FREDERICK NIEBOUR POTT, DECEASED)

(applicant)

v

CLAYTON UTZ

(respondent)

FILE NO/S:

5000/2014

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

4 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

15 December 2015

JUDGE:

Reid DCJ

ORDER:

1.          The Application to amend paragraphs [2] and [3] of the application filed 30 April 2015, so as to provide that the Respondent procure the proper itemisation of counsel’s invoices is dismissed.

2.          The Applicant’s solicitors serve a copy of this or order and these reasons on Mr GA Thompson QC.

3.          Counsel be given leave, if they wish, to appear on the hearing of the application filed 30 April 2015.

4.          Any party who wishes to seek costs of the application heard on 15 December 2015 shall serve submissions in support of such application on the other parties and email a copy of such submissions to my associate by 4.00pm, Tuesday 5 April 2016.

5.          Any parties against whom such costs are sought serve submissions in response on the parties seeking costs and email a copy to my associate by 4.00pm, Tuesday 12 April.

6.          Any further submissions in reply be served on the parties and emailed to my associate by 4.00pm, Wednesday 13 April 2016.

7.          In the event no submissions as ordered in paragraph 4 hereof are served b 4.00pm on 5 April 2016 then it will be ordered that costs of the application of 15 December 2015 be reserved.

8.          The Application filed 30 April 2015 is adjourned to 10.00 am on Friday, 10 June 2016.

9.          The Applicant file and serve written submissions in support of the Application filed 30 April 2015 on or before 4.00pm Friday, 3 June 2016.

10.       The Respondent file and serve written submissions in response to the Applicant’s submissions on or before 4.00pm   Wednesday 8 June 2016.

11.       Either counsel file any written submissions on which they intend to rely by 4.00pm Thursday, 9 June 2016.

12.       The Applicant submit to the Respondent and counsel a concise statement of the outstanding issues which she contends should be tried by the District Court before a costs assessor is appointed on or before 4.00pm Friday, 13 May 2016.

13.       The Respondent and either counsel (if they wish) shall indicate in writing on or before 4.00pm Friday, 27 May 2016:

14.       whether they agree as to the issue(s) outstanding;

15.       provide an alternative statement of outstanding issue(s);

16.       add any additional outstanding contentious issue(s); and

17.       identify any issue(s) which is/are conceded as no longer contentious and for which no evidence will be required to be called.

18.       The Applicant is to file and serve any affidavit material on which she intends to rely on or before 4.00pm Friday, 17 June 2016.

19.       The Respondent…

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 Pott v Clayton Utz

Details

AGLC: Pott v Clayton Utz [2016] QDC 39
Case: [2016] QDC 39
Decision Date: 4 March 2016

CaseChat Overview and Summary

In the case of Pott v Clayton Utz, the court was presented with a dispute concerning the assessment of costs, specifically focusing on the fees of a barrister. The matter was heard in the Supreme Court of New South Wales. The applicant sought an order for the respondent to ensure that the barrister's invoices were properly itemised. This was to facilitate the accurate assessment of costs, which is a critical aspect in legal proceedings. The case also involved a request for the court to allow counsel to potentially appear during the hearing of the primary application.

The central legal issue before the court was the interpretation and application of the court’s power to direct parties to ensure that barristers provide itemised invoices. The applicant argued that such power extends to requiring the respondent to procure the proper itemisation of counsel’s invoices. The respondent contested this interpretation, leading to a detailed examination of the relevant legal principles and authorities.

The court examined the phrase "taken to be a party" within the context of the Uniform Civil Procedure Rules. It found that this phrase does not necessarily extend to requiring the respondent to ensure the proper itemisation of the barrister's invoices. Consequently, the application to amend the initial application to include this requirement was dismissed. The court did, however, provide detailed directions for the further progression of the case, including deadlines for submissions, affidavit evidence, and the scheduling of the trial.

Orders

Orders of the court

1. The Application to amend paragraphs [2] and [3] of the application filed 30 April 2015, so as to provide that the Respondent procure the proper itemisation of counsel’s invoices is dismissed.

2. The Applicant’s solicitors serve a copy of this or order and these reasons on Mr GA Thompson QC.

3. Counsel be given leave, if they wish, to appear on the hearing of the application filed 30 April 2015.

4. Any party who wishes to seek costs of the application heard on 15 December 2015 shall serve submissions in support of such application on the other parties and email a copy of such submissions to my associate by 4.00pm, Tuesday 5 April 2016.

5. Any parties against whom such costs are sought serve submissions in response on the parties seeking costs and email a copy to my associate by 4.00pm, Tuesday 12 April.

6. Any further submissions in reply be served on the parties and emailed to my associate by 4.00pm, Wednesday 13 April 2016.

7. In the event no submissions as ordered in paragraph 4 hereof are served b 4.00pm on 5 April 2016 then it will be ordered that costs of the application of 15 December 2015 be reserved.

8. The Application filed 30 April 2015 is adjourned to 10.00 am on Friday, 10 June 2016.

9. The Applicant file and serve written submissions in support of the Application filed 30 April 2015 on or before 4.00pm Friday, 3 June 2016.

10. The Respondent file and serve written submissions in response to the Applicant’s submissions on or before 4.00pm Wednesday 8 June 2016.

11. Either counsel file any written submissions on which they intend to rely by 4.00pm Thursday, 9 June 2016.

12. The Applicant submit to the Respondent and counsel a concise statement of the outstanding issues which she contends should be tried by the District Court before a costs assessor is appointed on or before 4.00pm Friday, 13 May 2016.

13. The Respondent and either counsel (if they wish) shall indicate in writing on or before 4.00pm Friday, 27 May 2016:

14. whether they agree as to the issue(s) outstanding;

15. provide an alternative statement of outstanding issue(s);

16. add any additional outstanding contentious issue(s); and

17. identify any issue(s) which is/are conceded as no longer contentious and for which no evidence will be required to be called.

18. The Applicant is to file and serve any affidavit material on which she intends to rely on or before 4.00pm Friday, 17 June 2016.

19. The Respondent and either counsel (if they wish) are to file and serve any affidavit material on which they intend to rely on or before 4.00pm Friday, 1 July 2016.

20. The parties file a Form 48 (Request for Trial Date) on or before 4.00pm Friday, 8 July 2016.

21. Liberty to apply by either party on five clear working days' notice in writing to the other party and counsel.

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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CITATION:	Pott v Clayton Utz [2016] QDC 39
PARTIES:	CECILIA KIT-YING POTT (AS THE EXECUTOR OF THE ESTATE OF BRYAN FREDERICK NIEBOUR POTT, DECEASED) (applicant) v CLAYTON UTZ (respondent)
FILE NO/S:	5000/2014
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	4 March 2016
DELIVERED AT:	Brisbane
HEARING DATE:	15 December 2015
JUDGE:	Reid DCJ
ORDER:	1. The Application to amend paragraphs [2] and [3] of the application filed 30 April 2015, so as to provide that the Respondent procure the proper itemisation of counsel’s invoices is dismissed. 2. The Applicant’s solicitors serve a copy of this or order and these reasons on Mr GA Thompson QC. 3. Counsel be given leave, if they wish, to appear on the hearing of the application filed 30 April 2015. 4. Any party who wishes to seek costs of the application heard on 15 December 2015 shall serve submissions in support of such application on the other parties and email a copy of such submissions to my associate by 4.00pm, Tuesday 5 April 2016. 5. Any parties against whom such costs are sought serve submissions in response on the parties seeking costs and email a copy to my associate by 4.00pm, Tuesday 12 April. 6. Any further submissions in reply be served on the parties and emailed to my associate by 4.00pm, Wednesday 13 April 2016. 7. In the event no submissions as ordered in paragraph 4 hereof are served b 4.00pm on 5 April 2016 then it will be ordered that costs of the application of 15 December 2015 be reserved. 8. The Application filed 30 April 2015 is adjourned to 10.00 am on Friday, 10 June 2016. 9. The Applicant file and serve written submissions in support of the Application filed 30 April 2015 on or before 4.00pm Friday, 3 June 2016. 10. The Respondent file and serve written submissions in response to the Applicant’s submissions on or before 4.00pm Wednesday 8 June 2016. 11. Either counsel file any written submissions on which they intend to rely by 4.00pm Thursday, 9 June 2016. 12. The Applicant submit to the Respondent and counsel a concise statement of the outstanding issues which she contends should be tried by the District Court before a costs assessor is appointed on or before 4.00pm Friday, 13 May 2016. 13. The Respondent and either counsel (if they wish) shall indicate in writing on or before 4.00pm Friday, 27 May 2016: 14. whether they agree as to the issue(s) outstanding; 15. provide an alternative statement of outstanding issue(s); 16. add any additional outstanding contentious issue(s); and 17. identify any issue(s) which is/are conceded as no longer contentious and for which no evidence will be required to be called. 18. The Applicant is to file and serve any affidavit material on which she intends to rely on or before 4.00pm Friday, 17 June 2016. 19. The Respondent…