Remely v. Vandenberg & Ors

[2008] QCA 389

SUPREME COURT OF QUEENSLAND

CITATION:

Remely v O’Shea & Ors [2008] QCA 389

PARTIES:

OTTO REMELY
(plaintiff/applicant)
v
LEANNE O’SHEA
(defendant/first respondent)
LARAINE VANDENBERG AND GEOFF VANDENBERG
(defendant/second respondents)

FILE NO/S:

Appeal No 8395 of 2007
SC No 1 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED EX TEMPORE ON:

4 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

4 December 2008

JUDGES:

Holmes JA

ORDER:

1.  Application for review of costs assessment dismissed

2. Application to include costs objections in the costs assessment dismissed

3.  Applicant ordered to pay the second respondents’ costs of the three applications, that being the application to include costs objections in the costs assessment, the application to review the appointment of the costs assessor, and the application to review the costs assessment, those costs to be paid on an indemnity basis

CATCHWORDS:

PROCEDURE – COSTS – RECOVERY OF COSTS – where costs order made in favour of the respondent – where applicant applied: to have costs objections included in the costs assessment; to review the appointment of the costs assessor; to review the costs assessment – whether applications should be granted

Uniform Civil Procedure Rules 1999 (Qld), r 706, r 710, r 720, r 722, r 742

COUNSEL:

The applicant appeared on his own behalf
No appearance for the first respondent
R B Dixon for the second respondents

SOLICITORS:

The applicant appeared on his own behalf
No appearance for the first respondent
Payne Butler Lang for the second respondents

HOLMES JA: The applicant, Mr Remely, seeks a review, pursuant to rule 742 of the Uniform Civil Procedure Rules 1999, of a costs assessor's certificate filed on the 26th of August 2008.

Another application was brought.  It was an application to include costs objections in costs assessment.  That application, strictly speaking, is not one which can be made under the rules but I have treated it as an incidental aspect of the primary application for review of the costs certificate.

The relevant costs were payable pursuant to an order of the Court of Appeal dated 23rd of October 2007.  They were assessed by the costs assessor, Mr McLellan, at $2,965.21 for professional fees and disbursements of $2,714, the latter including his fees of $550.

An application for review of a costs certificate must be filed within 14 days of the parties' receipt of the certificate.  This application was filed on 30th of October 2008.  The second respondents, not surprisingly, took issue with the application as out of time, on the basis that Mr McLellan said he had sent his letter enclosing the costs certificate to Mr Remely on the 25th of August 2008.  The point is well made, but I propose in any event to consider Mr Remely's submissions.

The application was, as I have said, made under rule 742. It provides that unless the Court directs otherwise the Court, on such a review, may not receive further evidence and a party may not raise any…