Van Veenendaal v The Colonial Mutual Life Assurance Society Limited (No. 2)

[2013] QDC 213

DISTRICT COURT OF QUEENSLAND

CITATION:

Van Veenendaal v The Colonial Mutual Life Assurance Society Limited (No. 2) [2013] QDC 213

PARTIES:

KERRI JOY VAN VEENENDAAL

(plaintiff)

v

THE COLONIAL MUTUAL LIFE ASSURANCE SOCIETY LIMITED
(ACN 004 021 809)

(defendant)

FILE NO:

BD4712/11

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

20 September 2013

DELIVERED AT:

Brisbane

HEARING DATES:

16 August 2013, 2 September 2013 and on the papers

JUDGE:

Dorney QC, DCJ

ORDERS:

1.   The Defendant is granted leave to withdraw the admission in the Defence of the Defendant filed 20 January 2012 of so much of paragraph 5 of the Statement of Claim of the Plaintiff which alleges that “at all material times in 2006 Dominic Martin and/or Martin Financial Advisers Pty Ltd (ACN 098 681 988) (hereinafter referred to as “Martin”) was an insurance agent of the Defendant”, and the particulars thereof, pursuant to rule 188 of the Uniform Civil Procedure Rules 1999.

2.   The Plaintiff file and serve an Amended Statement of Claim against the Defendant by the 4^th of October 2013.

3.   The Defendant file a Third Amended Defence and Counterclaim by the 25^th of October 2013.

4.   The Defendant serve any Request for Further and Better Particulars of the Amended Statement of Claim by the 25^th of October 2013.

5.   The Plaintiff serve a response to any such Request by the 8^th of November 2013.

6.   The Plaintiff file and serve a Second Amended Reply and Answer to the Third Amended Defence and Counterclaim by the 8^th of November 2013.

7.   The Plaintiff serve any Request for Further and Better Particulars of the Third Amended Defence and Counterclaim by the 8^th of November 2013.

8.   The Defendant serve a response to any such Request by the 22^nd of November 2013.

9.   The Defendant pay the Plaintiff’s standard assessed costs “thrown away” by the Plaintiff in this proceeding by reason of the withdrawal of the admission provided for in paragraph 1 of this Order.

10.  The Defendant pay:-

a.   the standard assessed costs incurred by the Plaintiff (if any) in contesting a defence of the expiration of the limitation period, if raised by Dominic Martin and/or Martin Financial Advisers Pty Ltd (ACN 098 681 988) (“MFA”), in any proceedings by the Plaintiff against Dominic Martin and/or MFA for breach of contract (“the contract limitation period”) to the extent costs are not ordered to be paid by Dominic Martin of MFA in any such proceedings; and

b.   any costs which the Plaintiff is ordered to pay Dominic Martin and/or MFA of and incidental to the contract limitation period issue;

but only to the extent that such costs would not have otherwise been incurred if the contract limitation period issue had not been raised by Dominic Martin and/or MFA.

11.  The Defendant pay 50% of the Plaintiff’s costs of and incidental to the application, to be assessed on the standard basis.

CATCHWORDS:

LEGISLATION:

Costs – where indulgence sought for exercise of discretion – whether reasonable for respondent to contest – where respondent not clear about alleged prejudice

Uniform Civil Procedure Rules 1999, r 70(2)

COUNSEL:

K Holyoak for the applicant/defendant

M Bingham for the respondent/plaintiff

SOLICITORS:

McInnes Wilson for the applicant/defendant

Maurice Blackburn for the respondent/defendant

Introduction

1. On 6 September 2013, I gave a decision in this application filed 28 June 2013 in which I indicated that both parties should either agree as to the form of the short minutes of order or should make submissions to me about them.  Since no agreement was able to be reached, both parties have made relevant submissions, including forms of the draft orders.

1. Since the applicant/defendant has stated its agreement with many of the paragraphs of the respondent/plaintiff’s suggested draft, it is only necessary to address those which remain in dispute.  I will do that seriatim.

Costs “thrown away”

1. As the applicant correctly contends, it is not possible to determine at this stage to what extent the matters set out in paragraphs 3 to 8 (inclusive) of the respondent’s draft orders will add some unnecessary complication to the order as to those relevant costs.  Costs assessors are often required to determine the extent of costs “thrown away” when orders to that effect are made, and should be able to do so in this case as well (when all such costs are finally known).  With respect to any costs “thrown away” complying with the respondent’s draft order 2, for reasons later canvassed, it is not appropriate that any such entity should be joined as a party now, in any event by these particular orders.

1. Accordingly, I determine that paragraph 7 of the applicant’s draft is suggestive of the appropriate form of order. 

Costs in defending a limitation period

1. There is not a significant difference of a major kind between paragraph 11 of the respondent’s draft and paragraph 8 of the applicant’s draft.  The difference is whether the limited qualification which has been proffered by the respondent should be a qualification to both sub-paragraphs.

1. I accept that both sub-paragraphs ought to be subject to that express limitation.

1. Accordingly, I make orders in the form of paragraph 8 of the applicant’s draft.

Leave to join MFA

1. The applicant quite correctly points out that MFA is entitled, indeed required, to be heard on such an application: see Uniform Civil Procedure Rules 1999 (“UCPR”) r 70(2). Other particular aspects of the UCPR also appear to bear upon the determination of this issue.  They are set out in paragraph 4 of the applicant’s Submissions.

1. Because of the concerns about joinder in this proceeding, although I do not require that the respondent/plaintiff take any particular course as to whether joinder should be pursued or whether separate proceedings should be commenced (and, perhaps, an application that they be heard together be undertaken), I hold that it is not appropriate in this case for me to determine which course the respondent/plaintiff should take, particularly where it would be necessary to give MFA notification of the application - which is really a matter for the respondent/plaintiff to decide.

1. Accordingly, I determine that it is not appropriate in the orders that I make that I include one that “gives leave” to the plaintiff to join MFA.

Costs of the application

1. Naturally enough, the respondent seeks that the defendant pay her costs of and incidental to the application on the standard basis.  The applicant has argued to the contrary, contending that there ought be no order as to the costs of and incidental to the application.

1. While I accept that it is unclear as to whether there is some overarching principle which requires a party to pay costs when an indulgence from that party is sought from the court, it was necessary, as I have determined, that the applicant/defendant make this application because it did, in effect, seek a “withdrawal of an admission”.  Given that, it was reasonable of the respondent to have the court consider the merits of the application and to decide whether to exercise the relevant discretion.

1. What the respondent/plaintiff did do in response to the application was to file material which left me very unclear about what the nature of the causes of action were that she wished to bring against MFA.  For this reason, I required additional material from the respondent/plaintiff – which was provided, but required a further hearing.  It was only after considering that material and further detailed written and oral submissions that I then had a more clarified understanding of what was being alleged by the plaintiff concerning potential material prejudice.  

1. I do not place much strength in the argument that the original pleading by the respondent/plaintiff was the genesis of the problem.  Nevertheless, I do accept that the respondent/plaintiff did not respond, initially, in a way which would have led to a clear determination on the return date for the hearing of the application.

1. Since considerably complex issues were raised for consideration on the adjourned date, I determine that the respondent/plaintiff should not be allowed the entirety of her costs.

1. Accordingly, I will make an order that the applicant pay 50% of the respondent’s costs of and incidental to the application to be assessed on the standard basis.