Remely v O'Shea - [2008] QSC 172

SUPREME COURT OF QUEENSLAND

CITATION:

Remely v O’Shea & Ors [2008] QSC 172

PARTIES:

OTTO REMELY
(Plaintiff)
v
LEANNE O’SHEA
(First Respondent)

And

GEOFF VANDENBURG and LARAINE VANDENBEURG
(Second Respondent)

FILE NO/S:

Bundaberg 01 of 2006

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Bundaberg

DELIVERED ON:

21 August 2008

DELIVERED AT:

Rockhampton

HEARING DATE:

13 August 2008

JUDGE:

McMeekin J

ORDERS:

That the applications filed 6 March 2008, 31 March 2008 and 14 July 2008 be dismissed;1.

2.   That the enforcement of the warrant dated 15 May 2008 be stayed pending further order;

That the second respondents file and serve on the applicant any written submission in relation to the costs and charges claimed in Items 209 to 235 of the costs statement and disputed in Objection 122 of the Notice of Objection being part of Exhibit A to the affidavit of the applicant filed 30 June 2008, and of the costs of these proceedings, as they may be advised on or before 28 August 2008; 3.

That the applicant file and serve on the second respondents any written submission in relation to the costs and charges claimed in Items 209 to 235 of the costs statement and disputed in Objection 122 being part of Exhibit A to the affidavit of the applicant filed 30 June 2008, and of the costs of these proceedings, as he may be advised on or before 4 September 2008;4.

That if no written submissions be received concerning the costs and charges claimed in Items 209 to 235 of the costs statement and disputed in Objection 122 being part of Exhibit A to the affidavit of the applicant filed 30 June 2008 then the order of 28 April 2008 be varied by deleting $13,224.86 and inserting in its place $11,838.31.5.

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – GENERAL RULES – where the applicant seeks to have an application for costs assessment dismissed – where the applicant seeks to have the appointment of a costs assessor set aside – where the applicant seeks to have costs orders and a default assessment set aside

PROCEDURE – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – EXECUTION AGAINST THE PERSON – whether an enforcement warrant against the applicant can be stayed – where the applicant is the subject of several costs orders – where the respondent seeks to recover their costs

UCPR r 371, r 453, r 705, r 706, r 709, r 710, r 717.

Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364, followed

Rapid Roofing Pty Ltd & Ors v Natalise Pty Ltd & Ors [2007] QCA 179, applied

COUNSEL:

Applicant in person

R Dickson for the Second Respondent

SOLICITORS:

Applicant self represented

Payne Butler Lang for the Second Respondent

McMEEKIN J: The applicant, Mr Remely, brings four applications:

(a) to dismiss an application for cost assessment;

(b) to set aside the appointment of a costs assessor;

(c) 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.

Continue reading Remely v O'Shea

Details

AGLC: Remely v O'Shea [2008] QSC 172
Case: [2008] QSC 172
Decision Date: 21 August 2008

CaseChat Overview and Summary

The case of Remely v O'Shea involved the applicant, Remely, seeking to have various orders and assessments related to costs dismissed, set aside, or stayed. The respondents, O'Shea, sought to enforce costs orders against Remely. The primary legal issues before the court were whether the applicant's applications for the dismissal and setting aside of costs assessments and the appointment of a costs assessor should be granted, and whether an enforcement warrant against the applicant could be stayed.

The court considered the application to dismiss the assessment of costs and the appointment of a costs assessor, as well as the application to stay the enforcement of a warrant. The court found that the applications filed on 6 March 2008, 31 March 2008, and 14 July 2008 should be dismissed. Regarding the enforcement warrant, the court decided to stay its execution pending further order. The court further ordered the respondents to provide written submissions on specific costs items and directed the applicant to do the same. If no submissions were received by specified dates, the court ordered a variation in the amount of costs to be paid.

In summary, the court dismissed the applications to alter the costs assessment and the appointment of a costs assessor. It stayed the enforcement of the warrant against the applicant and mandated submissions on disputed costs items. If no submissions were received by the set dates, the court directed a specific variation in the costs amount.

Orders

Orders of the court

That the applications filed 6 March 2008, 31 March 2008 and 14 July 2008 be dismissed;1.

2. That the enforcement of the warrant dated 15 May 2008 be stayed pending further order;

That the second respondents file and serve on the applicant any written submission in relation to the costs and charges claimed in Items 209 to 235 of the costs statement and disputed in Objection 122 of the Notice of Objection being part of Exhibit A to the affidavit of the applicant filed 30 June 2008, and of the costs of these proceedings, as they may be advised on or before 28 August 2008; 3.

That the applicant file and serve on the second respondents any written submission in relation to the costs and charges claimed in Items 209 to 235 of the costs statement and disputed in Objection 122 being part of Exhibit A to the affidavit of the applicant filed 30 June 2008, and of the costs of these proceedings, as he may be advised on or before 4 September 2008;4.

That if no written submissions be received concerning the costs and charges claimed in Items 209 to 235 of the costs statement and disputed in Objection 122 being part of Exhibit A to the affidavit of the applicant filed 30 June 2008 then the order of 28 April 2008 be varied by deleting $13,224.86 and inserting in its place $11,838.31.5.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Remely v O’Shea & Ors [2008] QSC 172
PARTIES:	OTTO REMELY (Plaintiff) v LEANNE O’SHEA (First Respondent) And GEOFF VANDENBURG and LARAINE VANDENBEURG (Second Respondent)
FILE NO/S:	Bundaberg 01 of 2006
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Bundaberg
DELIVERED ON:	21 August 2008
DELIVERED AT:	Rockhampton
HEARING DATE:	13 August 2008
JUDGE:	McMeekin J
ORDERS:	That the applications filed 6 March 2008, 31 March 2008 and 14 July 2008 be dismissed;1. 2. That the enforcement of the warrant dated 15 May 2008 be stayed pending further order; That the second respondents file and serve on the applicant any written submission in relation to the costs and charges claimed in Items 209 to 235 of the costs statement and disputed in Objection 122 of the Notice of Objection being part of Exhibit A to the affidavit of the applicant filed 30 June 2008, and of the costs of these proceedings, as they may be advised on or before 28 August 2008; 3. That the applicant file and serve on the second respondents any written submission in relation to the costs and charges claimed in Items 209 to 235 of the costs statement and disputed in Objection 122 being part of Exhibit A to the affidavit of the applicant filed 30 June 2008, and of the costs of these proceedings, as he may be advised on or before 4 September 2008;4. That if no written submissions be received concerning the costs and charges claimed in Items 209 to 235 of the costs statement and disputed in Objection 122 being part of Exhibit A to the affidavit of the applicant filed 30 June 2008 then the order of 28 April 2008 be varied by deleting $13,224.86 and inserting in its place $11,838.31.5.
CATCHWORDS:	PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – GENERAL RULES – where the applicant seeks to have an application for costs assessment dismissed – where the applicant seeks to have the appointment of a costs assessor set aside – where the applicant seeks to have costs orders and a default assessment set aside PROCEDURE – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – EXECUTION AGAINST THE PERSON – whether an enforcement warrant against the applicant can be stayed – where the applicant is the subject of several costs orders – where the respondent seeks to recover their costs UCPR r 371, r 453, r 705, r 706, r 709, r 710, r 717. Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364, followed Rapid Roofing Pty Ltd & Ors v Natalise Pty Ltd & Ors [2007] QCA 179, applied
COUNSEL:	Applicant in person R Dickson for the Second Respondent
SOLICITORS:	Applicant self represented Payne Butler Lang for the Second Respondent