Queensland Building Services Authority v Mahony - [2012] QDC 226

DISTRICT COURT OF QUEENSLAND

CITATION:

Queensland Building Services Authority v Mahony [2012] QDC 226

PARTIES:

QUEENSLAND BUILDING SERVICES AUTHORITY
(Plaintiff)

v

GERARD WILLIAM MAHONY
(Defendant)

FILE NO:

D1996/09

DIVISION:

PROCEEDING:

Review of costs assessment

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

28 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

10 August 2012

JUDGE:

McGill SC DCJ

ORDER:

Assessment of the costs assessor varied by substituting $13,463.30 as the costs assessed in place of $38,654.08. Order of the Deputy Registrar of 16 July 2012 varied by deleting $38,654.08 and substituting $13,463.30.

CATCHWORDS:

COSTS – Assessment – costs “of and incidental to” an application – does not include wasted costs – what covered – reassessment.

UCPR rr 733, 734, 742.

Casey v Quabba [2006] QCA 187 – cited.
Chongherr Investments Ltd v Titan Sandstone Pty Ltd [2007] QCA 278 – considered.
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 – cited.
Di Carlo v Dubois [2002] QCA 225 – cited.
Re Gibson [1981] Ch 179 – followed.
Re Hudson, Ex parte Citicorp Australia Ltd (1986) 11 FCR 141 – considered.
King v King [2012] QCA 81 – cited.
Latoudis v Casey (1990) 170 CLR 534 – cited.
Myer v Myer [1932] VLR 322 – considered.

COUNSEL:

M J Morgan (solicitor) for the plaintiff

The defendant appeared in person

SOLICITORS:

Rostron Carlyle solicitors for the plaintiff

The defendant was not represented

This is a review of a costs assessment under UCPR r 742. On 29 November 2011 another judge made an order dealing with two applications, an application filed by the plaintiff on 21 November 2011 and an application filed by the defendant on 24 November 2011. Her Honour dismissed the defendant’s application, made various orders on the plaintiff’s application, and finally ordered that:

“The defendant pay the plaintiff’s costs of and incidental to the application on an indemnity basis pursuant to r 171 of the UCPR.”

Pursuant to that order the plaintiff filed on 14 March 2012 a costs statement claiming the sum of $38,434.08. On 21 March 2012 another judge ordered that a particular costs assessor be appointed to assess the costs statement, and extended the time for the defendant to file a notice of objection to the costs statement to the date on which such a notice had in fact been filed.

The costs assessor filed a certificate on 20 June 2012 certifying that he had assessed the costs payable under the order at $38,654.08, including (as disbursements) his fees for the assessment and the plaintiff’s costs of the assessment. On 16 July 2012 the registrar made an order on the basis of that certificate for the payment of the costs so assessed, under r 740. The costs assessor provided reasons for the assessment, a copy of which he filed on 27 July 2012. On 30 July 2012 the defendant filed an application seeking to review the decision of the costs assessor, which is the application before me. On 8 August 2012 the plaintiff undertook to…

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.

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Details

Case: [2012] QDC 226
Decision Date: 28 August 2012

CaseChat Overview and Summary

In the case of Queensland Building Services Authority v Mahony, the dispute involved a reassessment of costs associated with an application made by the Queensland Building Services Authority. The matter was heard by the Queensland Court of Appeal. The core issue before the court was whether the costs assessed by the Registrar of the Court included wasted costs, and if so, whether the reassessment should exclude such costs. The court needed to determine what precisely was covered by the term "costs of and incidental to" the application, and if the original assessment included costs that were wasteful, the reassessment should exclude these.

The court examined the relevant legal principles and statutory provisions governing the assessment of costs. It found that the term "costs of and incidental to" an application does not necessarily include wasted costs. The court held that wasted costs, by their very nature, are not costs that should be borne by the parties as they do not contribute to the proceedings. The court thus reasoned that the original assessment must be varied to exclude any wasted costs. Consequently, the assessment of the costs assessor was varied by substituting $13,463.30 as the costs assessed in place of $38,654.08.

The Queensland Court of Appeal, therefore, varied the order of the Deputy Registrar of 16 July 2012 by deleting $38,654.08 and substituting $13,463.30. The reassessment reflected the exclusion of wasted costs, aligning with the legal principles that only costs that are necessary and incidental to the proceedings should be included. This decision provides clarity on the scope of costs that can be claimed in relation to an application, ensuring that parties are not burdened with costs that do not contribute to the proceedings.

Orders

Orders of the court

Assessment of the costs assessor varied by substituting $13,463.30 as the costs assessed in place of $38,654.08. Order of the Deputy Registrar of 16 July 2012 varied by deleting $38,654.08 and substituting $13,463.30.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Queensland Building Services Authority v Mahony [2012] QDC 226
PARTIES:	QUEENSLAND BUILDING SERVICES AUTHORITY (Plaintiff) v GERARD WILLIAM MAHONY (Defendant)
FILE NO:	D1996/09
DIVISION:
PROCEEDING:	Review of costs assessment
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	28 August 2012
DELIVERED AT:	Brisbane
HEARING DATE:	10 August 2012
JUDGE:	McGill SC DCJ
ORDER:	Assessment of the costs assessor varied by substituting $13,463.30 as the costs assessed in place of $38,654.08. Order of the Deputy Registrar of 16 July 2012 varied by deleting $38,654.08 and substituting $13,463.30.
CATCHWORDS:	COSTS – Assessment – costs “of and incidental to” an application – does not include wasted costs – what covered – reassessment. UCPR rr 733, 734, 742. Casey v Quabba [2006] QCA 187 – cited. Chongherr Investments Ltd v Titan Sandstone Pty Ltd [2007] QCA 278 – considered. Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 – cited. Di Carlo v Dubois [2002] QCA 225 – cited. Re Gibson [1981] Ch 179 – followed. Re Hudson, Ex parte Citicorp Australia Ltd (1986) 11 FCR 141 – considered. King v King [2012] QCA 81 – cited. Latoudis v Casey (1990) 170 CLR 534 – cited. Myer v Myer [1932] VLR 322 – considered.
COUNSEL:	M J Morgan (solicitor) for the plaintiff The defendant appeared in person
SOLICITORS:	Rostron Carlyle solicitors for the plaintiff The defendant was not represented