Remely v O'Shea (No. 3) - [2009] QSC 110

SUPREME COURT OF QUEENSLAND

CITATION:

Remely v O’Shea & Ors (No. 3) [2009] QSC 110

PARTIES:

OTTO REMELY
(Applicant)

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:

12 May 2009

DELIVERED AT:

Rockhampton

HEARING DATE:

27 April 2009

JUDGE:

McMeekin J

ORDERS:

Each of the applications filed by Mr Remely on 24 February 2009 is dismissed.1.

Each of the applications filed by Mr Remely on 26 February 2009 is dismissed.2.

The enforcement hearing is to be referred back to the Registrar for hearing.3.

The Second Respondent is to provide submissions as to costs on or before 4pm 19 May 2009.4.

The Applicant is to provide submissions in reply on or before 4pm 26 May 2009.5.

Parties have liberty to apply.6.

CATCHWORDS:

PROCEDURE – COSTS – SCALES OF COSTS – SCALE APPLICABLE – Costs of obtaining an enforcement warrant - where the applicant submits the Supreme Court scale of costs applies – where the matter is within the jurisdiction of the Magistrates Court – Magistrates Courts scale applies.

PROCEDURE – JUDGMENTS AND ORDERS – INTEREST ON JUDGMENTS – RATE – Where the Applicant seeks to vary the interest rate applicable under s 48(1) of the Supreme Court Act 1995 (Qld).

PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – where Applicant seeks to have order requiring production of documents set aside.

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – REGISTRY AND REGISTRARS – where Applicant seeks to transfer matter from Registrar to Supreme Court.

Supreme Court Act 1995 (Qld), s 48

Uniform Civil Procedure Rules 1999 (Qld) rr 801, 803, 809, 982

Greenwood v Winsor & Anor [2008] QCA 415

COUNSEL:

Applicant self represented

R Dickson for the Second Respondent

SOLICITORS:

Applicant self represented

Payne Butler Lang for the Second Respondent

[1] McMEEKIN J: The second respondents have obtained three orders against the applicant, Mr Remely, for costs.[1] They obtained an enforcement warrant for the seizure and sale of property in respect of one order totalling $31,664.22. The Registrar issued an enforcement hearing summons on 21 January 2009.
[1]Mr Remely’s affidavit refers to a total amount of costs of $50,000. Mr Remely informed me in the course of the hearing that there were other orders but he had attended to payment of those orders. The amount already paid, he advised, exceeded $25,000. I observe that Fraser JA pointed out in one of the appeals brought by Mr Remely that the amount originally in dispute between the parties totalled less than $200: Remely v O’Shea & Anor [2008] QCA 111 para [6].

[2] Mr Remely now brings four applications before the court. The first seeks that the costs charged for the obtaining of the warrant be reduced from $470 to $230. The second seeks that the interest rate applicable under s 48(1) of…

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 (No. 3)

Details

AGLC: Remely v O'Shea (No. 3) [2009] QSC 110
Case: [2009] QSC 110
Decision Date: 12 May 2009

CaseChat Overview and Summary

In the case of Remely v O'Shea (No. 3), Mr. Remely sought various orders from the court, including an order for the application of the Supreme Court scale of costs, a variation in the interest rate on a judgment, the setting aside of an order requiring the production of documents, and the transfer of the matter from the Registrar to the Supreme Court. The opposing party, O'Shea, contested these applications. The court was required to determine the appropriate scale of costs to be applied, the correct interest rate on a judgment, whether the order for the production of documents should be set aside, and whether the matter should be transferred from the Registrar to the Supreme Court.

The court considered the nature of the matters being dealt with, which were within the jurisdiction of the Magistrates Court, and concluded that the appropriate scale of costs to apply was that of the Magistrates Court. Regarding the interest rate on the judgment, the court found that the applicable rate was as specified in the relevant legislation, and there was no basis to vary it. The order for the production of documents was upheld, and the application to set it aside was dismissed. The court also declined to transfer the matter from the Registrar to the Supreme Court, finding that the matter was appropriately handled by the Registrar.

In summary, the court dismissed all of the applications filed by Mr. Remely, and the enforcement hearing was to be referred back to the Registrar for hearing. The Second Respondent was required to provide submissions on costs by a specified date, and the Applicant was to respond in turn. The parties were granted liberty to apply for further orders if necessary. The court's decision was based on the nature of the matters being dealt with, the applicable legislation, and the appropriate allocation of resources within the court system.

Orders

Orders of the court

Each of the applications filed by Mr Remely on 24 February 2009 is dismissed.1.

Each of the applications filed by Mr Remely on 26 February 2009 is dismissed.2.

The enforcement hearing is to be referred back to the Registrar for hearing.3.

The Second Respondent is to provide submissions as to costs on or before 4pm 19 May 2009.4.

The Applicant is to provide submissions in reply on or before 4pm 26 May 2009.5.

Parties have liberty to apply.6.

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

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CITATION:	Remely v O’Shea & Ors (No. 3) [2009] QSC 110
PARTIES:	OTTO REMELY (Applicant) 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:	12 May 2009
DELIVERED AT:	Rockhampton
HEARING DATE:	27 April 2009
JUDGE:	McMeekin J
ORDERS:	Each of the applications filed by Mr Remely on 24 February 2009 is dismissed.1. Each of the applications filed by Mr Remely on 26 February 2009 is dismissed.2. The enforcement hearing is to be referred back to the Registrar for hearing.3. The Second Respondent is to provide submissions as to costs on or before 4pm 19 May 2009.4. The Applicant is to provide submissions in reply on or before 4pm 26 May 2009.5. Parties have liberty to apply.6.
CATCHWORDS:	PROCEDURE – COSTS – SCALES OF COSTS – SCALE APPLICABLE – Costs of obtaining an enforcement warrant - where the applicant submits the Supreme Court scale of costs applies – where the matter is within the jurisdiction of the Magistrates Court – Magistrates Courts scale applies. PROCEDURE – JUDGMENTS AND ORDERS – INTEREST ON JUDGMENTS – RATE – Where the Applicant seeks to vary the interest rate applicable under s 48(1) of the Supreme Court Act 1995 (Qld). PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – where Applicant seeks to have order requiring production of documents set aside. PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – REGISTRY AND REGISTRARS – where Applicant seeks to transfer matter from Registrar to Supreme Court. Supreme Court Act 1995 (Qld), s 48 Uniform Civil Procedure Rules 1999 (Qld) rr 801, 803, 809, 982 Greenwood v Winsor & Anor [2008] QCA 415
COUNSEL:	Applicant self represented R Dickson for the Second Respondent
SOLICITORS:	Applicant self represented Payne Butler Lang for the Second Respondent