Quin v Buchanan, in the matter of Queensland Roads, Earthmoving and Civil Construction Pty Ltd (In Liq) (No 3)
[2015] FCA 936
•25 August 2015
FEDERAL COURT OF AUSTRALIA
Quin v Buchanan, in the matter of Queensland Roads, Earthmoving and Civil Construction Pty Ltd (In Liq) (No 3) [2015] FCA 936
Citation: Quin v Buchanan, in the matter of Queensland Roads, Earthmoving and Civil Construction Pty Ltd (In Liq) (No 3) [2015] FCA 936 Parties: DAVID CHARLES QUIN AND CLYDE PETER WHITE AS JOINT AND SEVERAL LIQUIDATORS OF QUEENSLAND ROADS, EARTHMOVING AND CIVIL CONSTRUCTION PTY LTD (IN LIQUIDATION) ACN 125 448 802 v PAUL JEFFREY BUCHANAN File number: QUD 323 of 2015 Judge: EDELMAN J Date of judgment: 25 August 2015 Catchwords: COSTS – defendant’s failure to attend directions hearings and mediation – costs awarded Date of hearing: 25 August 2015 Place: Sydney (via Video Link to Brisbane) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 12 Counsel for the Plaintiff: Mr V Brennan Solicitor for the Plaintiff: Taylor David Lawyers Counsel for the Defendant: The Defendant appeared in person
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 323 of 2015
BETWEEN: DAVID CHARLES QUIN AND CLYDE PETER WHITE AS JOINT AND SEVERAL LIQUIDATORS OF QUEENSLAND ROADS, EARTHMOVING AND CIVIL CONSTRUCTION PTY LTD (IN LIQUIDATION) ACN 125 448 802
PlaintiffAND: PAUL JEFFREY BUCHANAN
Defendant
JUDGE:
EDELMAN J
DATE OF ORDER:
25 AUGUST 2015
WHERE MADE:
SYDNEY (VIA VIDEO LINK TO BRISBANE)
THE COURT ORDERS THAT:
1.The defendant is to pay the plaintiff’s costs of the:
(a)directions hearing on 4 August 2015;
(b)mediation on 17 August 2015;
(c)directions hearing on 18 August 2015; and
(d)directions hearing today.
2.The costs described in order 1 be fixed in the sum of $1,800.
3.The defendant have liberty to apply in relation to order 1.
4.Pursuant to Rule 28.02 of the Federal Court Rules 2011 (Cth), the parties are to attend a mediation on 18 September 2015.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 323 of 2015
BETWEEN: DAVID CHARLES QUIN AND CLYDE PETER WHITE AS JOINT AND SEVERAL LIQUIDATORS OF QUEENSLAND ROADS, EARTHMOVING AND CIVIL CONSTRUCTION PTY LTD (IN LIQUIDATION) ACN 125 448 802
PlaintiffAND: PAUL JEFFREY BUCHANAN
Defendant
JUDGE:
EDELMAN J
DATE:
25 AUGUST 2015
PLACE:
SYDNEY (VIA VIDEO LINK TO BRISBANE)
REASONS FOR JUDGMENT
In circumstances in which the defendant, Mr Buchanan, is now unrepresented, and in which he said in court this morning that he has not received copies of previous judgments in these proceedings, this judgment, which was delivered orally, has been transcribed in writing and provided to Mr Buchanan by email.
The plaintiff liquidators seek the costs of three directions hearings (including this hearing) and the mediation in this matter.
At the directions hearing on 4 August 2015, there was no appearance by Mr Buchanan. An application for default judgment was refused on that date for reasons including that Mr Buchanan only admitted in his defence that some payments had been made to him, contrary to the incorrect oral and ex-parte submission made by counsel for the liquidators (who was not counsel at the directions hearing today). However, the application for default judgment, and the directions hearing, had been necessitated by concerns about Mr Buchanan’s compliance.
The former legal representatives for Mr Buchanan advised my associate by email 45 minutes before the directions hearing was listed that they no longer acted for Mr Buchanan. They then emailed my associate again 15 minutes before the start of the directions hearing to say that, while they no longer act, they wished to advise the court that Mr Buchanan had requested that the directions hearing be adjourned because he is out of town. It appears that Mr Buchanan had been advised some time earlier that his legal representatives would no longer act for him but the timing of this advice is unclear.
It is appropriate that Mr Buchanan or his lawyers pay the liquidators’ costs of the directions hearing on 4 August 2015 but excluding the costs of the application for default judgment and affidavit in support and preparation of those proposed orders.
On 17 August 2015, a mediation was to be held. I had indicated to the parties, in previous directions hearings, the importance of attending the mediation in circumstances in which the sums involved in this litigation could be overwhelmed by the legal costs.
The parties were advised on 27 July 2015 by Registry of the details for the mediation and that attendance by personal representatives of the parties was mandatory. On 14 August 2015 the legal representatives of the liquidators advised the registry that they had received a phone call from Mr Buchanan’s partner advising that Mr Buchanan would not be appearing at the mediation because he was away. Given the very late notice by the liquidators, the mediation was not cancelled. Mr Buchanan did not attend the mediation.
It is appropriate that Mr Buchanan or his lawyers pay the costs of the liquidators’ attendance at the mediation. This does not include the mediation fee at this stage because the adjourned mediation will not be able to be rescheduled.
As a result of this failure to attend the mediation, the liquidators again applied for default judgment at the directions hearing on 18 August 2015. Mr Buchanan failed to attend the directions hearing on 18 August 2015. On that date, counsel for the liquidators (who was not counsel at the directions hearing today) omitted to mention in the application for default judgment that Mr Buchanan had advised the liquidators that he could not attend the mediation. This matter would not have come to the attention of the court if Mr Buchanan had not emailed my associate the evening before the directions hearing explaining that he had advised the liquidators’ solicitors that he would not be attending the mediation because he was away. At this directions hearing, the liquidators were unsuccessful in bringing a default judgment application and the directions hearing was adjourned to today.
It is appropriate that Mr Buchanan or his lawyers pay the liquidators’ costs of the 18 August 2015 directions hearing but excluding the costs of the application for default judgment and affidavit in support and preparation of the proposed orders.
Mr Buchanan attended the directions hearing today on 25 August 2015. The directions hearing today was necessitated by his failure to attend the mediation. The mediation will now need to be relisted and the matter reprogrammed. It is appropriate that Mr Buchanan or his lawyers pay the liquidators’ costs of the directions hearing today.
I have considered Mr Waterman’s affidavit of 25 August 2015 and the schedule of costs in it. I consider that the appropriate amount by which to fix the costs of 4 August 2015, 17 August 2015, 18 August 2015 and 25 August 2015 is $1,800. The defendant will have liberty to apply in relation to this order concerning any issues that arise between the defendant and his former lawyers.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edelman. Associate:
Dated: 25 August 2015
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