Remely v O'Shea (No. 2)

[2008] QSC 218

SUPREME COURT OF QUEENSLAND

CITATION:

Remely v O’Shea & Ors (No. 2) [2008] QSC 218

PARTIES:

OTTO REMELY
 (Plaintiff)
v
LEANNE O’SHEA
(First Respondent)
and
GEOFF VANDENBERG and LARAINE VANDENBERG
(Second Respondents)

FILE NO/S:

Bundaberg 01 of 2006

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Bundaberg

DELIVERED ON:

17 September 2008

DELIVERED AT:

Rockhampton

HEARING DATE:

Heard on the papers

JUDGE:

McMeekin J

ORDERS:

That the application filed 30 June 2008 be dismissed.1.   

That the stay of the warrant of execution of 15 May 2008 ordered by me on 28 August 2008 be removed.2.   

That the applicant pay the costs of the second respondents in respect of the applications to be assessed on the indemnity basis.filed 6 March 2008, 31 March 2008 and 14 July 20083.   

That the applicant pay the costs of the second respondents in respect of the application filed 30 June 2008 to be assessed on the standard basis4.   

CATCHWORDS:

PROCEDURE – COSTS – RECOVERY OF COSTS – where the plaintiff seeks to set aside a default costs assessment under r 708 of the Uniform Civil Procedure Rules – where certain costs were prospective and not yet incurred – whether the costs could be claimed by the respondents

PROCEDURE – COSTS – DEPARTING FROM GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – whether the defendant is entitled to costs on the indemnity basis – where the defendant sought to limit costs – where an offer of the defendants was ignored

UCPR, r708.

Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 118 ALR 248, applied.

Remely v O’Shea & Anor [2008] QSC 172, considered.

COUNSEL:

Applicant in person

R Dickson for the Second Respondent

SOLICITORS:

Applicant self represented

Payne Butler Lang for the Second Respondent

1. McMEEKIN J: On 28 August 2007 Dutney J ordered the applicant to pay the respondents costs in respect of an application for judicial review.[1] The amount of those costs was fixed by way of a default assessment under r 708 UCPR in the sum of $13,224.86.

   [1][2007] QSC 225

1. On 21 August 2008 I delivered reasons in relation to four applications brought by the applicant, Mr Remely.[2] The four applications made by Mr Remely in various ways sought to set aside that default assessment and prevent its enforcement.

   [2][2008] QSC 172

1. I dismissed three of those applications and I gave the parties leave to make submissions in relation to the fourth application which concerned the setting aside of the default assessment.  I stayed the enforcement warrant pending receipt of submissions. I have now received those submissions.

1. The issue on which I gave the parties leave concerned the amount of the default assessment. I was concerned that $1,386.55 of the default amount related not to costs actually incurred but to costs prospectively to be incurred assuming a disputed assessment – they appeared under the heading “Anticipated Future Costs” and presupposed the filing of a Notice of Objection. The…