Quinlivan v Konowalous (No 2) - [2020] QSC 15

SUPREME COURT OF QUEENSLAND

CITATION:

Quinlivan v Konowalous & Ors (No 2) [2020] QSC 15

PARTIES:
MICHAEL WILLIAM QUINLIVAN

(plaintiff)

v
ANDREW KONOWALOUS

(first defendant)

SPECTRUM IMAGING PTY LTD
ACN 143 919 395
(second defendant)

NICHOLAS MACZYSZYN
(third defendant)

ANTHONY GOLLE
(fourth defendant)

MARK ILLGUTH

(fifth defendant)

FILE NO/S:

2726 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

24 February 2020

DELIVERED AT:

Brisbane

HEARING DATE:

No oral hearing

JUDGE:

Davis J

ORDER:

1.    There be no order as to costs of the adjournment of the application of 13 February 2019.

2.    The plaintiff pay the first and second defendants’ costs of the claim, including the application filed on 16 January 2019 and including the costs of the adjournment of 22 January 2019, but excluding the costs of the adjournment of 13 February 2019, on the standard basis.

3.    The plaintiff pay the costs of the third, fourth and fifth defendants of the claim, including the costs of the application filed on 16 January 2019, on the indemnity basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – COSTS OF AND INCIDENTAL TO PROCEEDING – where the renewal of the plaintiff’s claim by the Registrar was set aside and the claim dismissed – where plaintiff submits that he should have the costs of two adjournments of the application which were ordered on 22 January 2019 and 13 February 2019 – where the first and second defendants seek their costs of the application and the proceedings on a standard basis – where it is appropriate to have regard to the final outcome of the application – where the direct fault which led to the adjournment of 13 February 2019 was that of the second defendant – whether the costs thrown away by the adjournments should follow the same fate as the other costs of the proceeding

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – POWER TO ORDER – RELEVANT CONSIDERATIONS GENERALLY – where the renewal of the plaintiff’s claim by the Registrar was set aside and the claim dismissed –– where the third, fourth and fifth defendants seek their costs of the application and the proceedings on an indemnity basis – where the plaintiff’s claims, other than the defamation claims, seemed misconceived – where the plaintiff’s defamation claims faced significant difficulties – where one of the motivations for bringing and maintaining the action was an ulterior one – where the plaintiff made a deliberate choice not to serve the claim within time – where the plaintiff’s conduct constituted a breach of the implied undertaking imposed by r 5 of the UCPR – where review of the modern authorities concerning the renewal of claims would have alerted the plaintiff to the inappropriateness of the course he adopted and of the dangers he faced that the claim would not be renewed if he failed to serve it…

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: [2020] QSC 15
Decision Date: 24 February 2020

CaseChat Overview and Summary

In Quinlivan v Konowalous (No 2), the plaintiff sought costs associated with two adjournments of an application, while the defendants sought costs of the application and the proceedings. The matter was before the court on an application by the first and second defendants for their costs of the application and the proceedings on a standard basis, and an application by the third, fourth and fifth defendants for their costs on an indemnity basis. The court was required to determine whether the costs thrown away by the adjournments should follow the same fate as the other costs of the proceeding and whether the costs of the third, fourth and fifth defendants should be assessed on the indemnity basis.

The court noted that the renewal of the plaintiff’s claim by the Registrar was set aside and the claim dismissed. The court held that the direct fault which led to the adjournment of 13 February 2019 was that of the second defendant, and therefore no order should be made as to the costs of that adjournment. The court held that the plaintiff’s claims, other than the defamation claims, seemed misconceived, and the defamation claims faced significant difficulties. The court found that one of the motivations for bringing and maintaining the action was an ulterior one, and the plaintiff made a deliberate choice not to serve the claim within time. The court held that the plaintiff’s conduct constituted a breach of the implied undertaking imposed by r 5 of the UCPR. The court held that the costs of the third, fourth and fifth defendants should be assessed on the indemnity basis.

The court ordered that the plaintiff pay the first and second defendants’ costs of the claim, including the application filed on 16 January 2019 and including the costs of the adjournment of 22 January 2019, but excluding the costs of the adjournment of 13 February 2019, on the standard basis. The court ordered that the plaintiff pay the costs of the third, fourth and fifth defendants of the claim, including the costs of the application filed on 16 January 2019, on the indemnity basis.

Orders

Orders of the court

1. There be no order as to costs of the adjournment of the application of 13 February 2019.

2. The plaintiff pay the first and second defendants’ costs of the claim, including the application filed on 16 January 2019 and including the costs of the adjournment of 22 January 2019, but excluding the costs of the adjournment of 13 February 2019, on the standard basis.

3. The plaintiff pay the costs of the third, fourth and fifth defendants of the claim, including the costs of the application filed on 16 January 2019, on the indemnity basis.

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:	Quinlivan v Konowalous & Ors (No 2) [2020] QSC 15
PARTIES:	MICHAEL WILLIAM QUINLIVAN (plaintiff) v ANDREW KONOWALOUS (first defendant) SPECTRUM IMAGING PTY LTD ACN 143 919 395 (second defendant) NICHOLAS MACZYSZYN (third defendant) ANTHONY GOLLE (fourth defendant) MARK ILLGUTH (fifth defendant)
FILE NO/S:	2726 of 2017
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	24 February 2020
DELIVERED AT:	Brisbane
HEARING DATE:	No oral hearing
JUDGE:	Davis J
ORDER:	1. There be no order as to costs of the adjournment of the application of 13 February 2019. 2. The plaintiff pay the first and second defendants’ costs of the claim, including the application filed on 16 January 2019 and including the costs of the adjournment of 22 January 2019, but excluding the costs of the adjournment of 13 February 2019, on the standard basis. 3. The plaintiff pay the costs of the third, fourth and fifth defendants of the claim, including the costs of the application filed on 16 January 2019, on the indemnity basis.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – COSTS OF AND INCIDENTAL TO PROCEEDING – where the renewal of the plaintiff’s claim by the Registrar was set aside and the claim dismissed – where plaintiff submits that he should have the costs of two adjournments of the application which were ordered on 22 January 2019 and 13 February 2019 – where the first and second defendants seek their costs of the application and the proceedings on a standard basis – where it is appropriate to have regard to the final outcome of the application – where the direct fault which led to the adjournment of 13 February 2019 was that of the second defendant – whether the costs thrown away by the adjournments should follow the same fate as the other costs of the proceeding PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – POWER TO ORDER – RELEVANT CONSIDERATIONS GENERALLY – where the renewal of the plaintiff’s claim by the Registrar was set aside and the claim dismissed –– where the third, fourth and fifth defendants seek their costs of the application and the proceedings on an indemnity basis – where the plaintiff’s claims, other than the defamation claims, seemed misconceived – where the plaintiff’s defamation claims faced significant difficulties – where one of the motivations for bringing and maintaining the action was an ulterior one – where the plaintiff made a deliberate choice not to serve the claim within time – where the plaintiff’s conduct constituted a breach of the implied undertaking imposed by r 5 of the UCPR – where review of the modern authorities concerning the renewal of claims would have alerted the plaintiff to the inappropriateness of the course he adopted and of the dangers he faced that the claim would not be renewed if he failed to serve it…