DISTRICT COURT OF QUEENSLAND
CITATION:
Pouzyr v Makhanyok & Anor (No 2) [2014] QDC 119
PARTIES:
IAROSLAV POUZYR
(plaintiff)v
ANDREY MAKHANYOK
(first defendant)and
ELENA MAKHANYOK
(second defendant)FILE NO/S:
SD207/11
DIVISION:
Civil
PROCEEDING:
Claim and Counterclaim – Decision on Costs
ORIGINATING COURT:
District Court, Southport
DELIVERED ON:
29 May 2014
DELIVERED AT:
Brisbane
HEARING DATE:
On the papers
JUDGE:
Dorney QC DCJ
ORDERS:
It is ordered that:
1. The plaintiff pay the defendants’ costs of and incidental to the Originating Application in the Supreme Court (No 3114 of 2011), to be assessed on the standard basis.
2. The plaintiff pay the defendants’ costs of the Claim, including those costs ordered to be “in the cause” (apart from any relating to the Counterclaim), but excluding any costs “thrown away” by reason of the adjournment on 17 October 2013, to be assessed on the standard basis.
3. The defendants pay the plaintiff’s costs of the Counterclaim, to be assessed on the standard basis.
CATCHWORDS:
Costs - where both “in the cause” (where late Counterclaim) and “reserved” (where illness necessitated adjournment) - where associated Supreme Court costs also reserved
LEGISLATION CITED:
Uniform Civil Procedure Rules 1999, r 681, r 698
CASES CITED:
AHB v NSW Trustee and Guardian [2014] NSWCA 40
Blacktown City Council v Wilkie (No 14) [2012] NSWLEC 252
Johnston & Anor v Herrod & Ors [2012] QCA 361
Merrin v Commissioner of Police [2012] QCA 181
COUNSEL:
Self-representation by the plaintiff
J Sweeney for the defendants
SOLICITORS:
Michael Sing Lawyers for the defendants
Introduction
On 20 May 2014, I delivered judgment, both on the Claim and the Counterclaim in this proceeding, and ordered that all parties have leave to file, and serve, written Submissions on Costs by 4:00pm on 27 May 2014.
Written Submissions have been received from the defendants only. The plaintiff has indicated that he does not intend to make any submissions.
The areas that I sought submissions on were contained in paragraph [69] of the decision reported as Pouzyr v Makhanyok & Anor [2014] QDC 112. I will consider each of those aspects in turn.
Costs in the cause
There are a number of interlocutory decisions in this proceeding in which one of the orders made by this Court has been that various costs be “costs in the cause”.
In this context it should be noted that the defendants’ Counterclaim only became part of the proceeding pursuant to leave given on 2 October 2013. It was filed on 3 October 2013.
That apart, before leave was given by this Court on 30 September 2013 for the plaintiff’s former solicitors to withdraw, the plaintiff had become a self-represented litigant by his Notice that he was Acting in Person filed on 27 September 2013.
The last order whereby costs were made “costs in the cause” was that made on 2 October 2013. In addition, at the adjourned trial…
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- Case
- [2014] QDC 119
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was the allocation of costs between the parties in light of the specific circumstances of the case. The court needed to determine whether the costs associated with the late counterclaim were recoverable, the extent to which the illness of one defendant justified costs for the adjournment, and the appropriate method of assessing costs. Additionally, the court had to decide on the costs related to the Supreme Court originating application and the counterclaim.
In rendering its decision, the court ruled that the plaintiff was entitled to the costs of the originating application in the Supreme Court and the costs of the claim, excluding any costs related to the late counterclaim and those "thrown away" due to the adjournment. The court assessed these costs on the standard basis. Conversely, the court held that the defendants were responsible for the costs of the counterclaim, also to be assessed on the standard basis. This decision balanced the equities between the parties, taking into account the specific circumstances of the case and the procedural history.
The court's orders reflected the balance struck in its reasoning. The plaintiff was directed to pay the defendants' costs of the Supreme Court originating application and the claim, excluding certain costs. The defendants, in turn, were ordered to pay the plaintiff's costs of the counterclaim. This outcome ensured that each party bore costs in accordance with the court's assessment of the circumstances and the procedural history.
Orders
Orders of the court
It is ordered that:
1. The plaintiff pay the defendants’ costs of and incidental to the Originating Application in the Supreme Court (No 3114 of 2011), to be assessed on the standard basis.
2. The plaintiff pay the defendants’ costs of the Claim, including those costs ordered to be “in the cause” (apart from any relating to the Counterclaim), but excluding any costs “thrown away” by reason of the adjournment on 17 October 2013, to be assessed on the standard basis.
3. The defendants pay the plaintiff’s costs of the Counterclaim, to be assessed on the standard basis.
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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