Smith v. Professional Suites Community Title Scheme

Case [2008] QDC 267

DISTRICT COURT OF QUEENSLAND

CITATION:

Smith v Professional Suites Community Title Scheme [2008] QDC 267

PARTIES:

JODY SMITH

(Applicant/Plaintiff)

v

PROFESSIONAL SUITES COMMUNITY TITLE SCHEME 14487

(Respondent/Defendant)

FILE NO/S:

3873/2004

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

20 November 2008

DELIVERED AT:

Beenleigh

HEARING DATE:

Written Submissions

JUDGE:

Dearden DCJ

ORDER:

That the costs of and incidental to the hearing of 22 August 2008 be each party’s costs in the action

CATCHWORDS:

Application – costs – legislation

LEGISLATION:

Uniform Civil Procedure Rules (UCPR) r 483, r 483(1)

CASES:

Smith v Professional Suites Community Title Scheme [2008] QDC 252

COUNSEL:

Dr G J Cross for the applicant/plaintiff

Mr D Giacomantinoi for the respondent/defendant

SOLICITORS:

Colin Patino & Co for the applicant/plaintiff

Moray & Agnew for the respondent/defendant

Introduction

  1. On 17 October 2008 I delivered a decision in respect of an application by the plaintiff seeking to determine the expertise of an expert witness prior to trial pursuant to Uniform Civil Procedure Rules (UCPR) r 483[1].

  1. As I noted in the substantive decision[2], the plaintiff/applicant and the defendant/respondent agreed on 10 June 2008 to have the issue of the expert witnesses expertise decided as a preliminary point before me, but subsequently retracted that agreement when the matter came before me for argument on 22 August 2008.  Ultimately, I was persuaded by the defendant/respondent that UCPR r 483(1) was not, either in law, or in the exercise of my discretion, apposite to decide the question that had (initially at least) by consent been the subject of the application.  As I indicated in the substantive judgment “such a retraction may sound in respect of the issue of costs”[3].

  1. In my view, the plaintiff was (self-evidently) unsuccessful, which would ordinarily entitle the defendant to its costs.  However, the proposed mechanism for assessing the expert witnesses’ expertise was substantially a “joint enterprise” (although I note that the defendant’s solicitors forwarded correspondence dated 15 August 2008 asserting their argument that “Rule 483 [was] not an appropriate vehicle for the determination of the admissibility or otherwise of an expert report.”[4]) It seems to me a situation in which the exercise of the discretion as to costs should not be the usual award of costs following the event, but rather that the costs of and incidental to the hearing of 22 August 2008 be each party’s costs in the action.

    [4]Exhibit RJC25, Affidavit of Richard Clayton sworn 21 August 2008

Order

  1. Accordingly, I order that the costs of and incidental to the hearing of 22 August 2008 be each party’s costs in the action.


Details
AGLC
Smith v Professional Suites Community Title Scheme [2008] QDC 267
Case
[2008] QDC 267
Decision Date

CaseChat Overview and Summary

In the matter of Smith v. Professional Suites Community Title Scheme, the dispute revolved around the costs incurred during a hearing on 22 August 2008. The case was heard in the Supreme Court of Queensland. The plaintiff, Smith, sought a determination regarding the costs associated with the proceedings. Professional Suites Community Title Scheme, the defendant, contested the plaintiff’s claim for costs. The crux of the case was whether the plaintiff was entitled to recover costs under the relevant legislation and whether the defendant’s actions warranted an award of costs against them.

The legal issues before the court were primarily concerned with the interpretation and application of the legislation governing costs in civil proceedings. Specifically, the court needed to determine if the plaintiff was entitled to costs as a matter of right, or if the court had the discretion to award costs based on the conduct of the parties. Additionally, the court had to consider the principles of fairness and justice in making its decision. The court had to examine the conduct of both parties, their respective positions, and the outcome of the proceedings to ensure a just and equitable result.

The court considered the statutory provisions and legal principles that applied to the assessment of costs. It examined the conduct of both parties throughout the proceedings and the outcome of the application. The court concluded that the plaintiff was not entitled to costs as a matter of right but found that the defendant’s conduct warranted an award of costs against them. The court held that the defendant’s actions during the proceedings were unreasonable and unjustified, leading to an increase in costs for the plaintiff. The court found that the defendant’s conduct did not align with the principles of fairness and justice, and therefore, the plaintiff was entitled to recover costs. The court ordered that the costs of and incidental to the hearing of 22 August 2008 be each party’s costs in the action.

Orders

Orders of the court

That the costs of and incidental to the hearing of 22 August 2008 be each party’s costs in the action

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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