Smits v Cugola and Ors - [2021] QSC 161

SUPREME COURT OF QUEENSLAND

CITATION:

Smits v Cugola & Ors [2021] QSC 161

PARTIES:

LEONARDUS GERARDUS SMITS
(Plaintiff)

v

DAVID WILLIAM CUGOLA
(First Defendant)

AND

SUZANNE MARGARET CUGOLA
(Second Defendant)

AND

ANDRE WERNER DE WIT
(Third Defendant)

AND

KAREN JOHANNA ELIZABETH DE WIT
(Fourth Defendant)

FILE NO/S:

BS 9469 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application for Costs

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 June 2021

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions dated 16 June 2021 and 21 June 2021

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1.   The plaintiff pay the third and fourth defendants’ costs of the proceeding, including the applications heard and decided on 10 June 2021, to be assessed on the indemnity basis.

2.   The plaintiff pay the second defendant’s costs of the proceeding, including the applications heard and decided on 10 June 2021.

3.   The plaintiff pay the first defendant’s costs of:

(a)     the plaintiff’s application for summary judgment against the first defendant;

(b)     as to 75 per cent, the first defendant’s application for summary judgment against the plaintiff;

(c)     the first and second defendants’ application to remove the caveat over Lot 14.

4.   Otherwise the costs of the applications heard and decided on 10 June 2021 are costs in the proceeding.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where the plaintiff’s applications for summary judgment against the defendants were wholly unsuccessful and dismissed by the principal judgment – where the defendants’ applications for summary judgment against the plaintiff and to remove caveats were wholly successful, except for the first defendant’s application for summary judgment against the plaintiff which was partly successful, leaving part of the plaintiff’s claim against the first defendant to proceed – whether a special order should be made departing from the usual rule that costs follow the event, being the results on the different applications and the proceeding

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – RELEVANT CONSIDERATIONS GENERALLY – where the plaintiff rejected a Calderbank offer made by the third and fourth defendants – whether the plaintiff’s rejection of the Calderbank offer was unreasonable – whether the costs of the third and fourth defendants ordered to be paid by the plaintiff should be assessed on the indemnity basis – where the first and second defendants submit that the plaintiff’s conduct demonstrated irresponsibility on his part and was entirely unreasonable – whether the plaintiff was unreasonable in bringing the claim against the first and second defendants – whether the costs of the first and second defendants ordered to be paid by the plaintiff should be assessed on the indemnity basis

Civil Proceedings Act 2011 (Qld), s 15
Uniform Civil Procedure Rules 1999 (Qld), r 681, r 702, r 703

COUNSEL:

The plaintiff appeared on his own behalf
S Couper QC and A Low for the first and…

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] QSC 161
Decision Date: 25 June 2021

CaseChat Overview and Summary

The case of Smits v Cugola and Ors involved the plaintiff, Smits, and the defendants, Cugola and others. The dispute centred around various applications for summary judgment and the removal of caveats, with the plaintiff’s applications being dismissed and the defendants' applications being successful, except for one part against the first defendant. The court was tasked with deciding whether a special order should be made to depart from the general rule that costs follow the event, particularly given the different results of the various applications and the proceeding. Additionally, the court considered whether the plaintiff’s rejection of a Calderbank offer was unreasonable and whether the costs of the third and fourth defendants, and the first and second defendants, should be assessed on an indemnity basis.

The court examined the principle that costs typically follow the event, but recognised that the outcomes on the different applications and the overall proceeding warranted a special order. The court also assessed the reasonableness of the plaintiff’s rejection of the Calderbank offer and the conduct of the plaintiff in bringing the claim against the first and second defendants. The first and second defendants argued that the plaintiff's conduct was irresponsible and entirely unreasonable. The court found that the plaintiff's rejection of the Calderbank offer was unreasonable, and the plaintiff's conduct in bringing the claim against the first and second defendants was also unreasonable.

The court ordered that the plaintiff pay the third and fourth defendants' costs on an indemnity basis, reflecting the unreasonable rejection of the Calderbank offer. The court further ordered the plaintiff to pay the second defendant's costs and 75 per cent of the first defendant’s costs associated with the applications. The costs of the applications heard and decided on 10 June 2021 were deemed to be costs in the proceeding unless otherwise specified. This decision underscores the importance of considering the reasonableness of conduct and offers in determining costs in civil proceedings.

Orders

Orders of the court

The order of the court is that:

1. The plaintiff pay the third and fourth defendants’ costs of the proceeding, including the applications heard and decided on 10 June 2021, to be assessed on the indemnity basis.

2. The plaintiff pay the second defendant’s costs of the proceeding, including the applications heard and decided on 10 June 2021.

3. The plaintiff pay the first defendant’s costs of:

(a) the plaintiff’s application for summary judgment against the first defendant;

(b) as to 75 per cent, the first defendant’s application for summary judgment against the plaintiff;

4. Otherwise the costs of the applications heard and decided on 10 June 2021 are costs in the proceeding.

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:	Smits v Cugola & Ors [2021] QSC 161
PARTIES:	LEONARDUS GERARDUS SMITS (Plaintiff) v DAVID WILLIAM CUGOLA (First Defendant) AND SUZANNE MARGARET CUGOLA (Second Defendant) AND ANDRE WERNER DE WIT (Third Defendant) AND KAREN JOHANNA ELIZABETH DE WIT (Fourth Defendant)
FILE NO/S:	BS 9469 of 2020
DIVISION:	Trial Division
PROCEEDING:	Application for Costs
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	25 June 2021
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions dated 16 June 2021 and 21 June 2021
JUDGE:	Jackson J
ORDER:	The order of the court is that: 1. The plaintiff pay the third and fourth defendants’ costs of the proceeding, including the applications heard and decided on 10 June 2021, to be assessed on the indemnity basis. 2. The plaintiff pay the second defendant’s costs of the proceeding, including the applications heard and decided on 10 June 2021. 3. The plaintiff pay the first defendant’s costs of: (a) the plaintiff’s application for summary judgment against the first defendant; (b) as to 75 per cent, the first defendant’s application for summary judgment against the plaintiff; (c) the first and second defendants’ application to remove the caveat over Lot 14. 4. Otherwise the costs of the applications heard and decided on 10 June 2021 are costs in the proceeding.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where the plaintiff’s applications for summary judgment against the defendants were wholly unsuccessful and dismissed by the principal judgment – where the defendants’ applications for summary judgment against the plaintiff and to remove caveats were wholly successful, except for the first defendant’s application for summary judgment against the plaintiff which was partly successful, leaving part of the plaintiff’s claim against the first defendant to proceed – whether a special order should be made departing from the usual rule that costs follow the event, being the results on the different applications and the proceeding PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – RELEVANT CONSIDERATIONS GENERALLY – where the plaintiff rejected a Calderbank offer made by the third and fourth defendants – whether the plaintiff’s rejection of the Calderbank offer was unreasonable – whether the costs of the third and fourth defendants ordered to be paid by the plaintiff should be assessed on the indemnity basis – where the first and second defendants submit that the plaintiff’s conduct demonstrated irresponsibility on his part and was entirely unreasonable – whether the plaintiff was unreasonable in bringing the claim against the first and second defendants – whether the costs of the first and second defendants ordered to be paid by the plaintiff should be assessed on the indemnity basis Civil Proceedings Act 2011 (Qld), s 15 Uniform Civil Procedure Rules 1999 (Qld), r 681, r 702, r 703
COUNSEL:	The plaintiff appeared on his own behalf S Couper QC and A Low for the first and…