Ralph Lauren 57 Pty Ltd v Conley - [2016] QSC 149

SUPREME COURT OF QUEENSLAND

CITATION:

Ralph Lauren 57 Pty Ltd v Conley [2016] QSC 149

PARTIES:

RALPH LAUREN 57 PTY LTD (as trustee)
(ACN 079 745 056)

(applicant)

v
MICHAEL CONLEY (as trustee for the CINDY FLEMING TRUST)

(respondent)

FILE NOS:

SC Nos 2270 – 2273 of 2015

SC Nos 2275-2284 of 2015

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

24 June 2016

JUDGE:

Ann Lyons J

ORDER:

1. In each proceeding the Certificate of Assessment is to be filed by the Costs Assessor in the Brisbane Supreme Court Registry by 6 September 2016.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – TAXATION AND OTHER FORMS OF ASSESSMENT – TAXING OFFICERS AND ASSESSORS – OTHER MATTERS – where the respondent filed applications for Costs Assessments – where the Costs Assessor ordered the applicant to pay the assessment fees – where the Costs Assessor submits its fees are disbursements – where the Costs Assessor withholds filing of Certificates of Assessments until payment of fees received – where the respondent submits it has no obligation to pay the assessment fees until Certificates of Assessment are filed – where the applicant seeks directions for filing of Certificates of Assessment, payment of assessment fees by respondent and that Costs Assessor’s fees are not disbursements – whether the Court should intervene in costs assessment prior to the filing of Certificates of Assessment and make the directions sought

Uniform Civil Procedure Rules 1999 (Qld) rr 705, 706, 715, 723, 727, 737, 742

Heaslip v State of Queensland, Unreported 23/7/2012, 5690 of 2010
Herald & Ors v Workerbee (Brisbane) Pty Ltd & Ors [2003] QSC 223
Hunter v Hunter [2015] QSC 181
Maggbury Pty Ltd v Hafele Australia Pty Ltd & Ors [2001] QSC 78
National Australia Bank Ltd v Clanford Pty Ltd [2002] QSC 361
Ralph Lauren 57 Pty Ltd v Conley [2015] QSC 090
Re Cooke [1997] 1 Qd R 15

COUNSEL:

M P Williams for the applicant

T Quinn for the costs assessor

No appearance from counsel for the respondent

SOLICITORS:

Barry.Nilsson for the applicant
Hawthorn Cuppaidge & Badgery Lawyers for the respondent

G R Ryan Solicitor for the costs assessor

The dispute

On 17 April 2015 Michael Conley (as trustee) (“Conley”) was ordered to pay Ralph Lauren 57 Pty Ltd’s (“Lauren”) costs on an indemnity basis in 14 separate Supreme Court proceedings.[1]
[1] Ralph Lauren 57 Pty Ltd v Conley [2015] QSC 090 (15/2270) Douglas J 17 April 2015.
After being served with Lauren’s Costs Statement, Conley issued Notices of Objection and then filed Applications for Costs Assessments in each of the 14 proceedings. A Costs Assessor was subsequently appointed by the Registrar to assess each Costs Statement.
The Costs Assessor subsequently advised the parties that the assessments in the 14 matters was complete and that the Certificates of Assessment would be filed in Court once the assessment fees were paid by Lauren.

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: [2016] QSC 149
Decision Date: 30 August 2016

CaseChat Overview and Summary

Ralph Lauren 57 Pty Ltd v Conley is a decision from the Queensland Supreme Court, addressing the issue of costs assessment in civil proceedings. The matter involved an application for costs assessment by Conley, the respondent, against Ralph Lauren 57 Pty Ltd, the applicant. The primary dispute centred on the payment of costs assessment fees and the timing of the filing of the Costs Assessor’s Certificate.

The court was required to decide whether the Costs Assessor could lawfully demand payment of their fees before the filing of the Costs Assessor’s Certificate, and if the applicant for the costs assessment had an obligation to pay these fees before the certificate was filed. This legal issue was significant because it touched on the interpretation of the relevant procedural rules governing costs assessment and the respective obligations of the parties involved.

The court found that the overriding philosophy of the costs assessment regime was that a Costs Assessor’s fees are generally payable by the party who sought the assessment. Under rule 740 of the Uniform Civil Procedure Rules 1999 (Qld), the Costs Assessor’s fees are payable by the party who applied for the assessment, and these fees are to be included in that party’s costs of the assessment. The court noted that there was no requirement for the Costs Assessor’s fees to be paid before the Assessor’s Certificate could be filed. Therefore, the court concluded that the Costs Assessor had no right to payment of their fees until after the Certificate of Assessment was filed. The court further held that the invoice for the Costs Assessor’s fees, addressed to Ralph Lauren, was improperly issued, as it was Conley who applied for the costs assessment.

ORDERS:
1. In each proceeding the Certificate of Assessment is to be filed by the Costs Assessor in the Brisbane Supreme Court Registry by 6 September 2016.

Orders

Orders of the court

1. In each proceeding the Certificate of Assessment is to be filed by the Costs Assessor in the Brisbane Supreme Court Registry by 6 September 2016.

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

Rule 740 then comes into operation. It would seem to me that the overriding philosophy of the costs assessment regime is that a costs assessor’s fees would as a general rule be paid by the party who sought the assessment, who in this case would be Conley. That rule provides:“740 Judgment for amount certified(1) After a certificate of assessment is filed, the registrar of the court must make the appropriate order having regard to the certificate.(2) The order takes effect as a judgment of the court.(3) However, the order is not enforceable until at least 14 days after it is made and the court may stay enforcement pending review of the assessment on terms the court considers just.(4) Unless the registrar orders otherwise, the costs assessor’s fees—(a) are payable to the cost assessor in the first instance by the party who applied for the assessment; and(b) are to be included in that party’s costs of the assessment.(5) Amounts paid or payable under the order are charged with payment of the costs assessor’s fees.” I accept that the previous procedure required the fees of the taxing officer (Court Registrar) be paid before the certification of taxation was signed. That was because the total certified included the taxing fee. This is referred to in Ryan, Weld and Lee, Supreme Court Practice.[17] It would also seem to be the case that the current prescribed form for a Costs Statement, which is Form 60A, still allows for those costs to be included. No doubt that is because the Registrar can appoint an Assessing Registrar to be the Costs Assessor. Such an inclusion however must be subject to the specific provision of the current UCPR. I can find no requirement that the cost assessors fees must be paid before the Assessors Certificate can be filed. It would seem to me therefore that the current r 740(4) of the UCPR creates the Costs Assessors right to payment but after the Certificate of Assessment is filed. [17] Volume 1, para 91.116.1. Furthermore on the chronology which has been put before me the applicant for the Costs Assessment would clearly seem to be Conley and not Lauren for the reasons I have previously outlined. The invoice however is addressed to Lauren who is not the applicant of the costs assessment. As I have already noted, r 740(4) specifically provides that “Unless the Registrar orders otherwise” the Costs Assessor’s fees are payable to the Costs Assessor in the first instance by the party who applied for the assessment. In the present case it is clear that the Registrar has not ordered otherwise. As Conley is the applicant I cannot ascertain on what basis the invoice has been sent to Lauren. If the invoice is to be sent to anyone other than Conley that is a matter for determination by the Registrar pursuant to r 740(4) and not the Costs Assessor. Such a determination cannot occur until the filing of the Costs Assessors Certificate has occurred. The subsequent provision of the Costs Assessor’s reasons would be a necessary precondition for any such determination.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ralph Lauren 57 Pty Ltd v Conley [2016] QSC 149
PARTIES:	RALPH LAUREN 57 PTY LTD (as trustee) (ACN 079 745 056) (applicant) v MICHAEL CONLEY (as trustee for the CINDY FLEMING TRUST) (respondent)
FILE NOS:	SC Nos 2270 – 2273 of 2015 SC Nos 2275-2284 of 2015
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	30 August 2016
DELIVERED AT:	Brisbane
HEARING DATE:	24 June 2016
JUDGE:	Ann Lyons J
ORDER:	1. In each proceeding the Certificate of Assessment is to be filed by the Costs Assessor in the Brisbane Supreme Court Registry by 6 September 2016.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – TAXATION AND OTHER FORMS OF ASSESSMENT – TAXING OFFICERS AND ASSESSORS – OTHER MATTERS – where the respondent filed applications for Costs Assessments – where the Costs Assessor ordered the applicant to pay the assessment fees – where the Costs Assessor submits its fees are disbursements – where the Costs Assessor withholds filing of Certificates of Assessments until payment of fees received – where the respondent submits it has no obligation to pay the assessment fees until Certificates of Assessment are filed – where the applicant seeks directions for filing of Certificates of Assessment, payment of assessment fees by respondent and that Costs Assessor’s fees are not disbursements – whether the Court should intervene in costs assessment prior to the filing of Certificates of Assessment and make the directions sought Uniform Civil Procedure Rules 1999 (Qld) rr 705, 706, 715, 723, 727, 737, 742 Heaslip v State of Queensland, Unreported 23/7/2012, 5690 of 2010 Herald & Ors v Workerbee (Brisbane) Pty Ltd & Ors [2003] QSC 223 Hunter v Hunter [2015] QSC 181 Maggbury Pty Ltd v Hafele Australia Pty Ltd & Ors [2001] QSC 78 National Australia Bank Ltd v Clanford Pty Ltd [2002] QSC 361 Ralph Lauren 57 Pty Ltd v Conley [2015] QSC 090 Re Cooke [1997] 1 Qd R 15
COUNSEL:	M P Williams for the applicant T Quinn for the costs assessor No appearance from counsel for the respondent
SOLICITORS:	Barry.Nilsson for the applicant Hawthorn Cuppaidge & Badgery Lawyers for the respondent G R Ryan Solicitor for the costs assessor