Pouzyr v Makhanyok (No 2)

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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

Murphy v Legal Services Commissioner (No 2) [2013] QSC 253

Pouzyr v Makhanyok & Anor [2014] QDC 112

COUNSEL:

Self-representation by the plaintiff

J Sweeney for the defendants

SOLICITORS: 

Michael Sing Lawyers for the defendants

Introduction

  1. 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. 

  1. Written Submissions have been received from the defendants only. The plaintiff has indicated that he does not intend to make any submissions.

  1. 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

  1. 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”. 

  1. 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. 

  1. 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. 

  1. 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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Details
Case
[2014] QDC 119
Decision Date

CaseChat Overview and Summary

In the case of Pouzyr v Makhanyok (No 2), the plaintiff sought costs incurred in relation to an originating application in the Supreme Court and a counterclaim in the Federal Circuit Court. The defendants contested these costs, arguing they should not bear the costs associated with the late counterclaim or the adjournment necessitated by their illness. The court was tasked with determining the appropriate costs to be awarded, considering the circumstances of each application and the nature of the counterclaim.

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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