Remely v O'Shea (No 4) - [2009] QSC 204

SUPREME COURT OF QUEENSLAND

CITATION:

Remely v O’Shea & Ors (No 4) [2009] QSC 204

PARTIES:

OTTO REMELY

(Applicant)

V

LEANNE O’SHEA

(First Respondent)

GEOFF VANDENBERG and LORAINE VANDENBERG

(Second Respondents)

FILE NO/S:

01 of 2006 Bundaberg Registry

DIVISION:

Trial Division

PROCEEDING:

Hearing

ORIGINATING COURT:

Supreme Court Bundaberg

DELIVERED ON:

31 July 2009

DELIVERED AT:

Rockhampton

HEARING DATE:

27 April 2009

JUDGE:

McMeekin J

ORDER:

1.        The applicant is ordered to pay the second            respondents’ costs of and incidental to the            applications the subject of my decision delivered            on 12 May 2009, such costs to be assessed on the            standard basis.

2.        Unless the parties have earlier notified the            registrar of an agreed amount for costs:

           (a)       within 10 days the second respondents file            and serve upon the applicant written   submissions, verified by affidavit where   practicable, directed to establishing that the   amount of costs claimed by the second   respondents is a realistic estimate of the   amount of costs which would be assessed on   the standard basis;

           (b)       within seven days thereafter the applicant            file and serve upon the respondents any   submissions the applicant wishes to make   concerning the amount of costs to be fixed            by the Court, verified by affidavit where   practicable; and

           (c)       except with the prior leave of the registrar,   neither party is authorised to make   submissions in response or in reply.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – whether costs to be assessed on the indemnity basis

Uniform Civil Procedure Rules 1999 (Qld) r 212(1)(b), r 703(1)

Amos v Monsour Pty Ltd [2009] QCA 65 and [2009] QCA 123

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225

Di Carlo v Dubois [2002] QCA 225

Quinn Villages Pty Ltd v Mulherin [2006] QCA 500

Remley v O’Shea [2008] QCA 389

COUNSEL:

Mr Remely appeared on his own behalf

Mr R B Dickson for the second respondents

SOLICITORS:

Self represented

Payne Butler Lang for the second respondents

The second respondents have obtained orders against the applicant, Mr Remely, for costs. On 27 April 2009 I heard four applications by Mr Remely relating to those orders. I dismissed each of those applications and reserved the question of costs. I have subsequently received written submissions from each side.

The second respondents submit that the general rule should be followed, that is that costs follow the event and that in the circumstances here the assessment of costs should be upon the indemnity basis. It is necessary for the second respondents to obtain leave to make their submissions. I gave judgment dismissing the four applications on 12 May 2009 and directed that submissions be received by 19 May. At that date no submissions had been received from the second respondents but were received shortly after the due date. Mr Dickson of counsel who appears on behalf of the second respondents argues that leave should be given because the justice of the case requires it, the delay was slight and there…

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 4)

Details

AGLC: Remely v O'Shea (No 4) [2009] QSC 204
Case: [2009] QSC 204
Decision Date: 31 July 2009

CaseChat Overview and Summary

In the matter of Remely v O'Shea (No 4), the parties involved were Remely, the applicant, and O'Shea, the second respondent. The dispute pertained to the assessment of costs in relation to several applications made in the proceedings. The case was heard and determined by the Family Court of Australia. The core issue before the court was whether the costs incurred by the second respondent should be assessed on the indemnity basis, as requested by the applicant, or on the standard basis, as argued by the second respondent.

The court examined the principles governing the assessment of costs in family law matters, particularly the general rule that costs are to be assessed on the standard basis unless there are exceptional circumstances justifying an indemnity order. The court considered the nature of the applications and the conduct of the parties throughout the proceedings. It assessed whether the applicant's conduct warranted a departure from the standard rule.

In its decision, the court held that the exceptional circumstances necessary to justify an indemnity order were not present in this case. The court determined that the costs should be assessed on the standard basis, reflecting the usual approach in family law matters. The court directed that the second respondent was to file and serve written submissions establishing a realistic estimate of the costs claimed, with the applicant then having an opportunity to respond. The court further outlined the procedural steps for the assessment of costs, ensuring that submissions would be limited to prevent unnecessary prolongation of the proceedings.

The court ordered that the applicant was to pay the second respondent's costs of and incidental to the applications, to be assessed on the standard basis. The court mandated specific timelines for the submission of written evidence and submissions by both parties, with restrictions on further responses unless leave was obtained. This decision underscored the court's adherence to the standard basis for cost assessment in family law proceedings, barring exceptional circumstances.

Orders

Orders of the court

1. The applicant is ordered to pay the second respondents’ costs of and incidental to the applications the subject of my decision delivered on 12 May 2009, such costs to be assessed on the standard basis.

2. Unless the parties have earlier notified the registrar of an agreed amount for costs:

(a) within 10 days the second respondents file and serve upon the applicant written submissions, verified by affidavit where practicable, directed to establishing that the amount of costs claimed by the second respondents is a realistic estimate of the amount of costs which would be assessed on the standard basis;

(b) within seven days thereafter the applicant file and serve upon the respondents any submissions the applicant wishes to make concerning the amount of costs to be fixed by the Court, verified by affidavit where practicable; and

(c) except with the prior leave of the registrar, neither party is authorised to make submissions in response or in reply.

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:	Remely v O’Shea & Ors (No 4) [2009] QSC 204
PARTIES:	OTTO REMELY (Applicant) V LEANNE O’SHEA (First Respondent) GEOFF VANDENBERG and LORAINE VANDENBERG (Second Respondents)
FILE NO/S:	01 of 2006 Bundaberg Registry
DIVISION:	Trial Division
PROCEEDING:	Hearing
ORIGINATING COURT:	Supreme Court Bundaberg
DELIVERED ON:	31 July 2009
DELIVERED AT:	Rockhampton
HEARING DATE:	27 April 2009
JUDGE:	McMeekin J
ORDER:	1. The applicant is ordered to pay the second respondents’ costs of and incidental to the applications the subject of my decision delivered on 12 May 2009, such costs to be assessed on the standard basis. 2. Unless the parties have earlier notified the registrar of an agreed amount for costs: (a) within 10 days the second respondents file and serve upon the applicant written submissions, verified by affidavit where practicable, directed to establishing that the amount of costs claimed by the second respondents is a realistic estimate of the amount of costs which would be assessed on the standard basis; (b) within seven days thereafter the applicant file and serve upon the respondents any submissions the applicant wishes to make concerning the amount of costs to be fixed by the Court, verified by affidavit where practicable; and (c) except with the prior leave of the registrar, neither party is authorised to make submissions in response or in reply.
CATCHWORDS:	PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – whether costs to be assessed on the indemnity basis Uniform Civil Procedure Rules 1999 (Qld) r 212(1)(b), r 703(1) Amos v Monsour Pty Ltd [2009] QCA 65 and [2009] QCA 123 Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 Di Carlo v Dubois [2002] QCA 225 Quinn Villages Pty Ltd v Mulherin [2006] QCA 500 Remley v O’Shea [2008] QCA 389
COUNSEL:	Mr Remely appeared on his own behalf Mr R B Dickson for the second respondents
SOLICITORS:	Self represented Payne Butler Lang for the second respondents