Puryer v Webb

[2008] QCA 320

SUPREME COURT OF QUEENSLAND

CITATION:

Puryer v Webb & Ors [2008] QCA 320

PARTIES:

TERENCE ROBERT PURYER
(applicant/appellant)
v
JOHN P WEBB
(first respondent/not a party to the appeal)
WILLIAM J RANDALL, SM
(second respondent/not a party to the appeal)
SHARLENE GAY COOMBS
(third respondent/respondent)
RENT CENTRE SERVICES PTY LTD ACN 105 896 688
(fourth respondent/not a party to the appeal)

FILE NO/S:

Appeal No 2646 of 2008
SC No 7232 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal - Further Order as to Costs

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Judgment delivered 22 August 2008
Further Order delivered 10 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

McMurdo P, Keane JA and Wilson J
Judgment of the Court

FURTHER ORDER:

The appellant to pay the respondent's costs in respect of the appeal fixed at $29,691.40

CATCHWORDS:

PROCEDURE – COSTS – RECOVERY OF COSTS – where the appellant was ordered to pay the respondent's costs of the appeal on the indemnity basis – where the respondent applies to the Court to have the costs of the appeal fixed pursuant to its power under r 687(2)(c) of the Uniform Civil Procedure Rules 1999 (Qld) – where the respondent has provided evidence in affidavit form of its costs in relation to the appeal quantified by reference to the Supreme Court Scale of Costs – where the appellant disputes the quantification submitted by the respondent and applies for the question of costs to be assessed – whether in the circumstances it is appropriate for the Court to fix the costs payable by the appellant to the respondent in relation to the appeal at the amount claimed by the respondent

Uniform Civil Procedure Rules 1999 (Qld), r 687(2)(c)

Puryer v Webb & Ors [2008] QCA 246, related

COUNSEL:

The appellant appeared on his own behalf
D W Williams for the respondent

SOLICITORS:

The appellant appeared on his own behalf
P M Lee & Co for the respondent

1. THE COURT: 

   On 22 August 2008, the Court gave judgment dismissing

   
   

   Mr Puryer's appeal.[1]  The Court expressed the view that Mr Puryer should pay

   
   

   Ms Coombs' costs of the appeal on the indemnity basis, but left open the possibility of fixing the costs recoverable by Ms Coombs rather than ordering that they be assessed. The Court has power to fix the costs of the appeal pursuant to r 687(2)(c) of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR").

   [1]Puryer v Webb & Ors [2008] QCA 246.

1. On behalf of Ms Coombs, the Court is asked to assess Ms Coombs' costs of the appeal at $29,691.40.  The quantum of the costs so claimed is vouched by a schedule calculated by reference to Sch 1 of the Scale of Costs of the Supreme Court.  The costs claimed include outlays.

1. Mr Knight, Ms Coombs' solicitor, has sworn an affidavit deposing to his belief that these costs were reasonably incurred.  A perusal of the schedule propounded on behalf of Ms Coombs does not give rise to scepticism or concern in this regard.

1. Mr Puryer objects to the proposal that this Court fix the costs of the appeal; he proposes that the costs be assessed.  Mr Puryer urges that there is no particular reason why this Court should assume responsibility for fixing the costs, and that the Court cannot be confident that the quantification put forward on behalf of

   
   

   Ms Coombs is reliable.

1. Mr Puryer has written to Ms Coombs' solicitors demanding that they produce the documentation relating to the items claimed in the schedule of costs propounded by Ms Coombs.  In his affidavit in opposition to this Court fixing the costs, Mr Puryer swears:

"In the absence of the documents and in particular the client agreements and receipts, there is in my submission no entitlement whatsoever to costs or outlays.  I dispute that the sum of $29,691.40 is fair and reasonable for costs of the third respondent."

1. Mr Puryer's demands indicate that the process of assessment of costs will be an expensive exercise, especially for Ms Coombs.  Mr Puryer evidently intends to make the assessment of the costs he is obliged to pay Ms Coombs in respect of the unsuccessful appeal a prolonged and expensive process.  Having regard to the relatively modest amount claimed on behalf of Ms Coombs, that is a prospect of grave concern to the Court. 

1. This Court held that Mr Puryer's appeal was pursued unreasonably by him.  The attitude adopted by Mr Puryer in relation to the assessment of costs is, regrettably, of a piece with that reflected in his unreasonable pursuit of the appeal.  This Court should be astute to ensure that the process of assessment of costs should not be allowed to be used as an engine of oppression or vexation.

1. So far as the reliability of the quantification of the costs is concerned, there is no good reason why this Court should not be prepared to act upon the detailed costing provided by Ms Coombs' solicitors.

Order

1. This Court fixes the costs payable by Mr Puryer to Ms Coombs in respect of the appeal at $29,691.40.