Thomson v Thomsons Lawyers (No 2) - [2016] QDC 151

DISTRICT COURT OF QUEENSLAND

CITATION:

Thomson v Thomsons Lawyers (No 2) [2016] QDC 151

PARTIES:

CAROLYN THOMSON

(first appellant)

WAYNE THOMSON

(second appellant)

v

THOMSONS LAWYERS (A FIRM)

(respondent)

FILE NO/S:

149/2014

4962/2014

DIVISION:

Civil

PROCEEDING:

Costs hearing

ORIGINATING COURT:

Magistrate Court at Brisbane

DELIVERED ON:

2 June 2016 (ex tempore)

DELIVERED AT:

Ipswich

HEARING DATE:

2 June 2016

JUDGE:

Horneman-Wren SC DCJ

ORDER:

1.   The question pursuant to rule 743G(2)(d)(i) be answered that the first appellant is not liable to pay the respondent any sum of legal costs, as she was not a client of the respondent.

2.   The respondent pay the first appellant’s costs of and incidental to the hearing before Magistrate Costello on 22 August 2014 in Magistrates Court proceeding number 1049 of 2014 on the standard basis.

3.   The respondent pay the first appellant’s costs of and incidental to the appeals, including the application to extend time, on the standard basis, save that the first appellant pay the respondent’s costs thrown away by the adjournment on 29 April 2016 on the standard basis.

4.   The respondent pay to the first appellant the reserved costs of the application before Reid DCJ on 28 January 2015, on the standard basis.

5.   The appellant pay the respondent’s costs thrown away by the amendment of the Notice of Appeal allowed by Reid DCJ on 18 March 2015.

6.   The respondent’s application for an indemnity certificate is refused.

CATCHWORDS:

PROCEDURE- CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS- COSTS- GENERAL MATTERS- where request for costs order pursuant to UCPR 743G(2)(d)(i)- where costs order made

PROCEDURE- CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS- COSTS- INDEMNITY COSTS- RELEVANT CONSIDERATIONS GENERALLY- where order sought for indemnity costs for the Magistrates Court proceedings- whether demonstrated that conduct is plainly unreasonable or that there is special or unusual feature justifying a departure from the usual rule of costs on the standard basis- whether proceedings where commenced for some ulterior motive or in wilful disregard of known facts or law- whether allegations made that ought never have been made- where allegation at issue was determined on appeal and not by acting magistrate- where contention addressed in substantive judgment- where no order for indemnity costs should be made

PROCEDURE- CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS- COSTS- OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENS- INFORMAL OFFERS AND CALDERBANK LETTERS- whether correspondence amounts to an invitation to capitulate- whether failure to accept is unreasonable- whether time given to consider offer is reasonable- where not unreasonable to reject offer

COUNSEL:

PL Somers for the first appellant.

R Dickson for the respondent.

SOLICITORS:

McBride Legal for the first appellant.

Thomson Geer Lawyers for the respondent.

HIS HONOUR: On 8 April 2016, I published a judgment in respect to the substantive appeals in this matter, in which I ordered that the appeals be allowed; that the appeals be allowed and that the judgment entered on 22 August 2014, against Carolyn Thomson and Wayne Thomson, be set aside. I also ordered that I…

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: [2016] QDC 151
Decision Date: 2 June 2016 (ex tempore)

CaseChat Overview and Summary

The case of Thomson v Thomsons Lawyers (No 2) involves a dispute between the appellants and the respondent, Thomsons Lawyers, concerning the liability for legal costs incurred during litigation. The matter was heard in the Supreme Court of New South Wales. The appellants, who were not clients of the respondent, sought a determination on whether they were liable for costs incurred during proceedings in the Magistrates Court and subsequent appeals.

The central legal issues addressed by the court were whether the appellants should be ordered to pay indemnity costs to the respondent and whether the appellants were liable for the respondent’s costs in the Magistrates Court proceedings. The court needed to determine if the conduct of the appellants was plainly unreasonable or if there was a special or unusual feature justifying a departure from the usual rule of costs on the standard basis. Additionally, the court had to consider whether the proceedings were commenced for some ulterior motive or in wilful disregard of known facts or law, and whether allegations were made that ought never have been made.

The court found that no order for indemnity costs should be made against the appellants. It concluded that there was no plainly unreasonable conduct or special or unusual feature justifying such an order. The court also found that the appellants were not liable to pay the respondent’s costs in the Magistrates Court proceedings because they were not the respondent’s clients. The court ruled that the respondent was to pay the appellants’ costs in various stages of the litigation, while the appellants were to pay certain costs incurred by the respondent due to amendments and adjournments.

The court's final orders included that the appellants were not liable to pay the respondent any legal costs, the respondent was to pay the appellants' costs in specific proceedings on the standard basis, and the respondent’s application for an indemnity certificate was refused. The appellants were ordered to pay certain costs incurred by the respondent due to amendments and adjournments.

Orders

Orders of the court

1. The question pursuant to rule 743G(2)(d)(i) be answered that the first appellant is not liable to pay the respondent any sum of legal costs, as she was not a client of the respondent.

2. The respondent pay the first appellant’s costs of and incidental to the hearing before Magistrate Costello on 22 August 2014 in Magistrates Court proceeding number 1049 of 2014 on the standard basis.

3. The respondent pay the first appellant’s costs of and incidental to the appeals, including the application to extend time, on the standard basis, save that the first appellant pay the respondent’s costs thrown away by the adjournment on 29 April 2016 on the standard basis.

4. The respondent pay to the first appellant the reserved costs of the application before Reid DCJ on 28 January 2015, on the standard basis.

5. The appellant pay the respondent’s costs thrown away by the amendment of the Notice of Appeal allowed by Reid DCJ on 18 March 2015.

6. The respondent’s application for an indemnity certificate is refused.

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:	Thomson v Thomsons Lawyers (No 2) [2016] QDC 151
PARTIES:	CAROLYN THOMSON (first appellant) WAYNE THOMSON (second appellant) v THOMSONS LAWYERS (A FIRM) (respondent)
FILE NO/S:	149/2014 4962/2014
DIVISION:	Civil
PROCEEDING:	Costs hearing
ORIGINATING COURT:	Magistrate Court at Brisbane
DELIVERED ON:	2 June 2016 (ex tempore)
DELIVERED AT:	Ipswich
HEARING DATE:	2 June 2016
JUDGE:	Horneman-Wren SC DCJ
ORDER:	1. The question pursuant to rule 743G(2)(d)(i) be answered that the first appellant is not liable to pay the respondent any sum of legal costs, as she was not a client of the respondent. 2. The respondent pay the first appellant’s costs of and incidental to the hearing before Magistrate Costello on 22 August 2014 in Magistrates Court proceeding number 1049 of 2014 on the standard basis. 3. The respondent pay the first appellant’s costs of and incidental to the appeals, including the application to extend time, on the standard basis, save that the first appellant pay the respondent’s costs thrown away by the adjournment on 29 April 2016 on the standard basis. 4. The respondent pay to the first appellant the reserved costs of the application before Reid DCJ on 28 January 2015, on the standard basis. 5. The appellant pay the respondent’s costs thrown away by the amendment of the Notice of Appeal allowed by Reid DCJ on 18 March 2015. 6. The respondent’s application for an indemnity certificate is refused.
CATCHWORDS:	PROCEDURE- CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS- COSTS- GENERAL MATTERS- where request for costs order pursuant to UCPR 743G(2)(d)(i)- where costs order made PROCEDURE- CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS- COSTS- INDEMNITY COSTS- RELEVANT CONSIDERATIONS GENERALLY- where order sought for indemnity costs for the Magistrates Court proceedings- whether demonstrated that conduct is plainly unreasonable or that there is special or unusual feature justifying a departure from the usual rule of costs on the standard basis- whether proceedings where commenced for some ulterior motive or in wilful disregard of known facts or law- whether allegations made that ought never have been made- where allegation at issue was determined on appeal and not by acting magistrate- where contention addressed in substantive judgment- where no order for indemnity costs should be made PROCEDURE- CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS- COSTS- OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENS- INFORMAL OFFERS AND CALDERBANK LETTERS- whether correspondence amounts to an invitation to capitulate- whether failure to accept is unreasonable- whether time given to consider offer is reasonable- where not unreasonable to reject offer
COUNSEL:	PL Somers for the first appellant. R Dickson for the respondent.
SOLICITORS:	McBride Legal for the first appellant. Thomson Geer Lawyers for the respondent.