See Well Law Practice Pty Ltd v Barclay - [2021] QDC 114

DISTRICT COURT OF QUEENSLAND

CITATION:

See Well Law Practice Pty Ltd v Barclay [2021] QDC 114

PARTIES:

SEE WELL LAW PRACTICE PTY LTD as trustee for THE SEE WELL LAW TRUST trading as SEE WELL LAW

(applicant)

v

SUSAN BEVERLY BARCLAY AS PERSONAL REPRESENTATIVE IN THE ESTATE OF OLIVE ELMS, DECEASED

(respondent)

FILE NO:

144/2020

PROCEEDING:

Application for costs

ORIGINATING COURT:

Magistrates Court
Maroochydore

DELIVERED ON:

18 June 2021

DELIVERED AT:

Maroochydore

HEARING DATE:

Determined on the papers without oral hearing

JUDGE:

Cash QC DCJ

ORDERS:

The applicant and Donna Maree Sewell are to pay the respondent’s costs of the proceeding in the District Court fixed in the amount of $35,000.

LEGISLATION:

District Court of Queensland Act 1967 (Qld), s 113
Magistrates Court Act 1921 (Qld), s 45, s 47
Uniform Civil Procedure Rules 1999 (Qld), r 5, 367, r 681, r 687, r 702, r 703, r 766, r 785

CASES:

Arundel Chiropractic Centre Pty Ltd v Deputy Commission for Taxation (2001) 179 ALR 406
ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2008] QSC 9; [2008] 2 Qd R 298, [32]
Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, 232-234
Collins v The Queen (1975) 133 CLR 120, 122-123
North Ganalanja Aboriginal Corporation v Qld (1996) 185 CLR 595, 643
Knight v F.P. Special Assets Ltd (1992) 174 CLR 178
Smith v Ash [2011] 1 Qd R 175, [51]
Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683
Symphony Group PLC v Hodgson [1994] QB 179
Warren v Body Corporate for Buon Vista CTS 14325 [2007] QCA 160, [19]

COUNSEL:

No appearance for the applicant
S Hartwell for the respondent

SOLICITORS: No appearance for the applicant
Donald Portbury & Co for the respondent

Introduction and necessary background

This decision concerns the costs of an unsuccessful application for leave to appeal a decision of a Magistrate. Before coming to the issues to be decided, it is necessary to set out some background. The applicant is a law practice. The respondent engaged the law practice to do work and in due course the applicant rendered bills. One bill was for $4,613.20 and was said to be in relation to the registration of an enduring power of attorney. The other bill was for $4,393.65 and was said to be in relation to a conveyance. The respondent was unhappy with the bills. She sought their assessment pursuant to the Legal Profession Act 2007 (Qld). A costs assessor reviewed the matter and decided that the appropriate fee for the power of attorney work was $89.51 and for the conveyance $1,183.71. The applicant was unhappy with this decision and applied to a Magistrate to review the costs assessment. A Magistrate heard, and dismissed, the applicant’s application for review. He ordered the applicant pay the respondent’s costs of the application on the standard basis, those costs to be fixed if the parties agreed or otherwise to be assessed.
Still dissatisfied with the reduction of the…

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.

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Details

Case: [2021] QDC 114
Decision Date: 18 June 2021

CaseChat Overview and Summary

See Well Law Practice Pty Ltd v Barclay involved the applicant, See Well Law Practice Pty Ltd, represented by Donna Maree Sewell, who sought to appeal against a decision made by a Magistrate. The respondent, Barclay, defended the appeal in the District Court of Queensland. The central dispute was the refusal of the applicant's application for leave to appeal, which led to a subsequent claim for costs. The court was required to determine the appropriate basis for assessing the costs, whether on a standard or indemnity basis, and to fix or assess the costs if appropriate.

The legal issues before the court included whether the application for leave to appeal was merited and the appropriateness of awarding costs on an indemnity basis. The court had to consider the principles governing the award of indemnity costs, which include wilful disregard of known facts or established law, unnecessary prolongation of the case, or baseless or irrelevant allegations of fraud. The applicant’s pursuit of the appeal without proper understanding of the relevant law and the submission of irrelevant material indicated a wilful disregard of known facts and law. Additionally, the applicant’s failure to comply with procedural requirements caused delays and difficulties, further justifying the imposition of indemnity costs.

The court concluded that the circumstances warranted the imposition of indemnity costs due to the applicant's unmeritorious pursuit of the appeal, the making of unsubstantiated allegations, and the prolongation of the proceedings. The court exercised its discretion under rule 687(2)(c) of the UCPR to fix the costs rather than assess them, considering the excessive costs incurred and the likelihood of further litigation if costs were assessed. The fixed costs were determined to be $35,000, reflecting a broad and fair approach in light of the nature of the case.

ORDERS:
The applicant, See Well Law Practice Pty Ltd, and Donna Maree Sewell are to pay the respondent, Barclay, the costs of the proceeding in the District Court, fixed in the amount of $35,000.

Orders

Orders of the court

The applicant and Donna Maree Sewell are to pay the respondent’s costs of the proceeding in the District Court fixed in the amount of $35,000.

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

Consideration of the respondent’s submissions The Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) apply to civil proceedings in the District Court. Chapter 17A provides for costs. Pursuant to rule 681 costs ‘are in the discretion of the court but follow the event, unless the court otherwise orders’. While in some cases identifying the ‘event’ may be difficult, in this case it is not. The event was my refusal of the application for leave to appeal. In that, the applicant was wholly unsuccessful. It follows that, as a starting point, the applicant should be ordered to pay the costs of the respondent of the proceeding in the District Court unsuccessfully pursued by the applicant. Of course, this is not an inflexible rule. In some cases circumstances might exist to disentitle a successful party to their costs. But no such circumstance exists in this case. Costs are usually to be assessed on the standard basis.[3] But rule 703 permits the court to order assessment on the indemnity basis. The relevant principles governing the award of costs on the indemnity basis are not in doubt (see Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, 232-234). Before an order for indemnity costs might be made, there must be some special or unusual feature to justify departure from the usual practice. Such features might include:1. Wilful disregard of known facts or established law;2. Unnecessary prolongation of the case; or3. Baseless or irrelevant allegations of fraud.[3]UCPR, rule 702. As to the first, the applicant seemed entirely unaware of the relevant law concerning leave to appeal against the decision of the Magistrate. If the applicant had been aware of this requirement, and what the cases say about the test for leave, it would have appreciated the very difficult task it faced. Instead, the proposed appeal was pursued with reliance upon a large amount of irrelevant material and with serious allegations of fraud and other misconduct made without reference to admissible evidence. When Ms Sewell appeared, nothing was said on behalf of the applicant to properly engage with the question of leave to appeal. Of less significance, but still relevant, is the delay and other difficulties caused by the applicant’s continued failure to comply with requirements for the filing of material. In these circumstances, where the respondent has had to defend unmeritorious proceedings, has faced unsubstantiated allegations of fraud and misconduct, and has confronted delay in the prosecution of the proceedings, it is entirely appropriate to exercise the discretion to order costs on the indemnity basis. Rule 687(2)(c) allows the court to order a party pay an amount of costs fixed by the court, rather than assessed costs. There are benefits to fixing costs. Among them is that it spares the parties the costs of assessment.[4] A point has been reached in the proceeding where the parties’ costs far exceed what was in dispute. It is highly desirable to bring an end to the expenses. I also infer from the applicant’s intransigence in the pursuit of its claims that a process of assessment is likely to lead to further litigation. The circumstances favour fixing costs if that is otherwise appropriate. The respondent has filed affidavit material containing a detailed assessment of her costs.[5] This evidence provides me with a basis to reliably and with confidence fix the costs of the proceedings in the District Court. Assessed on the indemnity basis, the costs to the respondent of the proceeding in the District Court are $39,884.88. It is common when fixing costs that there be a degree of discounting to reflect that the process is not intended to be as rigorous as assessment.[6] Fixing costs can reflect a broad approach.[7] Adopting such an approach I intend in this case to fix the costs of the proceeding in the District Court at $35,000.[4]ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2008] QSC 9; [2008] 2 Qd R 298, [32].[5]Affidavit of Donald Portbury filed 14 May 2021 (court document 14).[6]ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2008] QSC 9; [2008] 2 Qd R 298, [32].[7]Warren v Body Corporate for Buon Vista CTS 14325 [2007] QCA 160, [19].

CITATION:	See Well Law Practice Pty Ltd v Barclay [2021] QDC 114
PARTIES:	SEE WELL LAW PRACTICE PTY LTD as trustee for THE SEE WELL LAW TRUST trading as SEE WELL LAW (applicant)
v
SUSAN BEVERLY BARCLAY AS PERSONAL REPRESENTATIVE IN THE ESTATE OF OLIVE ELMS, DECEASED (respondent)
FILE NO:	144/2020
PROCEEDING:	Application for costs
ORIGINATING COURT:	Magistrates Court Maroochydore
DELIVERED ON:	18 June 2021
DELIVERED AT:	Maroochydore
HEARING DATE:	Determined on the papers without oral hearing
JUDGE:	Cash QC DCJ
ORDERS:	The applicant and Donna Maree Sewell are to pay the respondent’s costs of the proceeding in the District Court fixed in the amount of $35,000.
LEGISLATION:	District Court of Queensland Act 1967 (Qld), s 113 Magistrates Court Act 1921 (Qld), s 45, s 47 Uniform Civil Procedure Rules 1999 (Qld), r 5, 367, r 681, r 687, r 702, r 703, r 766, r 785
CASES:	Arundel Chiropractic Centre Pty Ltd v Deputy Commission for Taxation (2001) 179 ALR 406 ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2008] QSC 9; [2008] 2 Qd R 298, [32] Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, 232-234 Collins v The Queen (1975) 133 CLR 120, 122-123 North Ganalanja Aboriginal Corporation v Qld (1996) 185 CLR 595, 643 Knight v F.P. Special Assets Ltd (1992) 174 CLR 178 Smith v Ash [2011] 1 Qd R 175, [51] Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683 Symphony Group PLC v Hodgson [1994] QB 179 Warren v Body Corporate for Buon Vista CTS 14325 [2007] QCA 160, [19]
COUNSEL:	No appearance for the applicant S Hartwell for the respondent
SOLICITORS:	No appearance for the applicant Donald Portbury & Co for the respondent