Remely v Vandenberg - [2009] QCA 17

SUPREME COURT OF QUEENSLAND

CITATION:

Remely v Vandenberg [2009] QCA 17

PARTIES:

OTTO REMELY
(plaintiff/applicant)
v
LARAINE VANDENBERG AND GEOFF VANDENBERG
(defendants/respondents)

FILE NO/S:

Appeal No 8395 of 2007
SC No 1 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

Supreme Court at Bundaberg

DELIVERED EX TEMPORE ON:

16 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

16 February 2009

JUDGE:

Holmes JA

ORDERS:

1.   Application dated 13 January 2009 for review of costs assessment dismissed;

2.   Application dated 10 February 2009 for disclosure dismissed;

3.   Applicant pay second respondents’ costs on an indemnity basis in relation to both applications.

CATCHWORDS:

PROCEDURE – COSTS – RECOVERY OF COSTS – where applicant made application for “review of decision in cost certificates” – where application does not relate to any particular decision in costs assessor’s certificate, but seeks new costs assessment and appointment of different costs assessor – where application seeks alternative order that costs assessor provide written reasons – where costs assessor not a party to the application – whether application for review of costs assessment valid application

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – OTHER MATTERS – where applicant made application for disclosure of material before costs assessor – whether disclosure rules apply to this proceeding, commenced by notice of appeal – whether order should be made under r 742 – whether application for disclosure should be granted

Uniform Civil Procedure Rules 1999 (Qld), r 209, r 712, r 713, r 738, r 742

COUNSEL:

The applicant appeared on his own behalf
R B Dickson for the respondents

SOLICITORS:

The applicant appeared on his own behalf
Payne Butler Lang for the respondents

HOLMES JA: On the 13th January 2009, the applicant, Mr Remely, filed an application entitled "Application for review of decision in cost certificates." It relates to three costs assessments, the first concerning costs ordered by the President, Justice Fraser and Acting Justice of Appeal Mackenzie on the 20th May 2008, the second relating to an order of Justice Keane on the 20th May 2008 and the third an order made by Justice Martin in the Trial Division on 28th May 2008. Issues related to the third were thought more appropriately dealt with in the Trial Division. I understand the application so far as it concerns that certificate is presently listed to be dealt with in the Trial Division on the 2nd March 2009.

Today Mr Remely sought an adjournment of his application together with a further application, also listed for hearing today, for orders for disclosure of files provided to the costs assessor by the solicitor for the respondents, the solicitor/client agreement between the respondents and their solicitor and proof of payments to counsel. He said that he had not had time to prepare or to formulate his outline of argument. He conceded in his affidavit in support of his application for an adjournment, however, that he was informed that the two matters were set down for…

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 Vandenberg

Details

AGLC: Remely v Vandenberg [2009] QCA 17
Case: [2009] QCA 17
Decision Date: 16 February 2009

CaseChat Overview and Summary

Remely, the applicant, filed an application to review a costs assessment against Vandenberg, the respondent, in the context of proceedings that had been initiated in the Magistrates Court and subsequently appealed to the Supreme Court of Queensland. The applicant sought a new costs assessment by a different costs assessor and requested that the original costs assessor provide written reasons for their assessment. Notably, the costs assessor was not a party to the application. Additionally, the applicant sought an order for the disclosure of material before the costs assessor, questioning the applicability of the disclosure rules to the proceeding initiated by a notice of appeal.

The court was required to determine whether the application for the review of the costs assessment was a valid application under the circumstances, given that it did not pertain to any specific decision in the costs assessor’s certificate but instead sought a new assessment and the appointment of a different costs assessor. Furthermore, the court had to decide if the disclosure rules were applicable to the proceeding, which was initiated by a notice of appeal, and whether the application for disclosure should be granted.

The court dismissed the application for the review of the costs assessment, finding it to be invalid as it did not relate to any specific decision in the costs assessor’s certificate. The court also dismissed the application for disclosure, determining that the disclosure rules did not apply to the proceeding initiated by a notice of appeal. Consequently, the applicant was ordered to pay the second respondent’s costs on an indemnity basis in relation to both applications.

Orders

Orders of the court

1. Application dated 13 January 2009 for review of costs assessment dismissed;

2. Application dated 10 February 2009 for disclosure dismissed;

3. Applicant pay second respondents’ costs on an indemnity basis in relation to both applications.

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 Vandenberg [2009] QCA 17
PARTIES:	OTTO REMELY (plaintiff/applicant) v LARAINE VANDENBERG AND GEOFF VANDENBERG (defendants/respondents)
FILE NO/S:	Appeal No 8395 of 2007 SC No 1 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Civil
ORIGINATING COURT:	Supreme Court at Bundaberg
DELIVERED EX TEMPORE ON:	16 February 2009
DELIVERED AT:	Brisbane
HEARING DATE:	16 February 2009
JUDGE:	Holmes JA
ORDERS:	1. Application dated 13 January 2009 for review of costs assessment dismissed; 2. Application dated 10 February 2009 for disclosure dismissed; 3. Applicant pay second respondents’ costs on an indemnity basis in relation to both applications.
CATCHWORDS:	PROCEDURE – COSTS – RECOVERY OF COSTS – where applicant made application for “review of decision in cost certificates” – where application does not relate to any particular decision in costs assessor’s certificate, but seeks new costs assessment and appointment of different costs assessor – where application seeks alternative order that costs assessor provide written reasons – where costs assessor not a party to the application – whether application for review of costs assessment valid application PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – OTHER MATTERS – where applicant made application for disclosure of material before costs assessor – whether disclosure rules apply to this proceeding, commenced by notice of appeal – whether order should be made under r 742 – whether application for disclosure should be granted Uniform Civil Procedure Rules 1999 (Qld), r 209, r 712, r 713, r 738, r 742
COUNSEL:	The applicant appeared on his own behalf R B Dickson for the respondents
SOLICITORS:	The applicant appeared on his own behalf Payne Butler Lang for the respondents