Roberts v Pollock (No 2) - [2019] QSC 188

SUPREME COURT OF QUEENSLAND

CITATION: Roberts v Pollock & Anor (No 2) [2019] QSC 188

PARTIES:
COLIN BENJAMIN ROBERTS (as the executor of the estate of ALISTAIR GOW HENDERSON, deceased) (applicant)

v

DAVID ANDREW POLLOCK

(first respondent) AND

WATCHTOWER BIBLE AND TRACT SOCIETY OF AUSTRALIA

(second respondent)

FILE NO: BS No 6858 of 2018

DIVISION: Trial Division

PROCEEDING: Application

DELIVERED ON:
Date of Orders: 31 July 2019

Date of Publication of Reasons: 5 August 2019

DELIVERED AT: Brisbane

HEARING DATE: On the papers

JUDGE: Davis J

ORDERS:
Date of Orders: 31 July 2019

1. The Applicant’s costs of the application be paid on an indemnity basis from the residue.

2. No order as to the costs of the First and Second Respondents.

CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – FORM AND

SETTLING OF COSTS ORDERS – where the second respondent submitted that the first respondent had not conducted himself efficiently – where the second respondent submitted that if the first respondent’s costs were to be paid from the residue then those costs should be restricted to the costs of one day of hearing – whether the first respondent’s conduct of the case was appropriate

Uniform Civil Procedure Rules 1999 (Qld), r 700A

Buckton v Buckton [1907] 2 Ch 406, cited

Frizzo and Anor v Frizzo & Ors (No 2) [2011] QSC177, cited
Kerr v Kerr & Anor [2017] QSC 323, cited
Murdocca v Murdocca (No 2) [2002] NSWSC 505, followed
Roberts v Pollock & Anor [2019] QSC 184, related
Roche v Roche & Anor (No 2) [2017] SASC 75, cited

COUNSEL:
G R Dickson for the Applicant

R D Williams for the First Respondent M Horvath for the Second Respondent

SOLICITORS:
Thynne & Macatney for the Applicant GHS Legal for the First Respondent

Michael Cooper Lawyer for the Second Respondent

The applicant, being the executor of the estate of Alistair Gow Henderson deceased (Mr Henderson) made application for declarations to determine whether certain money of Mr Henderson’s held with the Suncorp Bank passed to the first respondent or fell to residue and therefore to the second respondent.

On 31 July 2019, I made declarations, the effect of which was that the disputed money fell to the second respondent. 1
I heard the parties on costs and allowed the second respondent to deliver a short written submission which his counsel did before midday on 31 July 2019.

I made orders on the papers in these terms, relevantly to costs:

1.The Applicant’s costs of the application be paid on an indemnity basis from the residue.

2.No order as to the costs of the First and Second Respondents.

These are the reasons for the making of those orders.

Submissions of the parties

The applicant applied for his costs on an indemnity basis to be paid from the residue. Neither respondent opposed such an order. It was necessary for the applicant to make an application to quell the controversy between the respondents. It is…

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 Roberts v Pollock (No 2)

Details

AGLC: Roberts v Pollock (No 2) [2019] QSC 188
Case: [2019] QSC 188
Decision Date: 31 July 2019

CaseChat Overview and Summary

The case of Roberts v Pollock (No 2) involves the applicant seeking an order for costs from the respondents in civil proceedings. The legal dispute pertains to the appropriate conduct of the first respondent in managing the case and the consequential costs associated with the proceedings. The case was heard in a state court, and the applicants sought an indemnity basis for their costs from the residue, while the second respondent argued for restrictions on the first respondent’s costs if they were to be paid from the residue.

The court was required to determine whether the first respondent’s conduct in the case was efficient and appropriate, considering the submissions from the second respondent. The second respondent argued that if the first respondent’s costs were to be paid from the residue, those costs should be limited to the expenses incurred for one day of the hearing. The court had to assess the submissions and decide on the appropriate allocation of costs between the parties.

In reaching its decision, the court examined the conduct of the first respondent and the submissions made by the second respondent. The court determined that the first respondent’s conduct warranted costs to be paid on an indemnity basis from the residue to the applicant. However, the court did not make any order regarding the costs of the first and second respondents. This balanced approach ensured that the applicant’s reasonable costs were covered while not imposing undue financial burden on the respondents.

The final orders made by the court on 31 July 2019 were that the applicant’s costs of the application be paid on an indemnity basis from the residue, and there would be no order as to the costs of the first and second respondents. This decision reflects the court's assessment of the efficiency of the first respondent's conduct and the submissions made by the second respondent regarding the scope of the costs to be covered.

Orders

Orders of the court

Date of Orders: 31 July 2019

1. The Applicant’s costs of the application be paid on an indemnity basis from the residue.

2. No order as to the costs of the First and Second Respondents.

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:	Roberts v Pollock & Anor (No 2) [2019] QSC 188
PARTIES:	COLIN BENJAMIN ROBERTS (as the executor of the estate of ALISTAIR GOW HENDERSON, deceased) (applicant) v DAVID ANDREW POLLOCK (first respondent) AND WATCHTOWER BIBLE AND TRACT SOCIETY OF AUSTRALIA (second respondent)
FILE NO:	BS No 6858 of 2018
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	Date of Orders: 31 July 2019 Date of Publication of Reasons: 5 August 2019
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Davis J
ORDERS:	Date of Orders: 31 July 2019 1. The Applicant’s costs of the application be paid on an indemnity basis from the residue. 2. No order as to the costs of the First and Second Respondents.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – FORM AND SETTLING OF COSTS ORDERS – where the second respondent submitted that the first respondent had not conducted himself efficiently – where the second respondent submitted that if the first respondent’s costs were to be paid from the residue then those costs should be restricted to the costs of one day of hearing – whether the first respondent’s conduct of the case was appropriate Uniform Civil Procedure Rules 1999 (Qld), r 700A