Verhagen v Millard - [2012] QDC 196

DISTRICT COURT OF QUEENSLAND

CITATION:

Verhagen & Anor v Millard [2012] QDC 196

PARTIES:

PETER EDWARD ANTHONY VERHAGEN
(plaintiff)

AND

WILLHELMINA VERHAGEN
(second Plaintiff)

v

WAYNE STANLEY MILLARD
(defendant)

FILE NO/S:

BD 5367/09

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

17 July 2012

DELIVERED AT:

Brisbane

HEARING DATE:

25 and 26 May 2011, written submissions to 10 June 2011

JUDGE:

Andrews SC DCJ

ORDER:

Liberty to the parties to make further submissions on 23 July 2012. Adjourned to 23 July 2012 for submissions and final orders. Costs reserved.

CATCHWORDS:

CONTRACT–AGAINST PUBLIC POLICY – where the parties after judgment compromised – whether by compromise they agreed to re-litigate an issue previously decided –whether agreement to re-litigate against public policy –whether compromise void - where money paid into trust pursuant to compromise with a view to payer’s proving title to the money in further proceeding – whether title in issue in this proceeding-whether payer entitled to money

ESTOPPEL – where the mortgagee provided that the mortgagor pay the mortgagees’ costs – where the mortgagee applied for costs after judgment – whether the application was for only costs of the proceeding – where the mortgagor submitted that costs “in regards to the mortgage are not a matter for determination” – where the mortgagee did not seek other than costs of the proceeding – where orders made about costs of the proceeding-where in subsequent proceeding the mortgagees claimed costs pursuant to the mortgage – whether an Anshun estoppel arises to prevent them

ESTOPPEL – where the court in an earlier proceeding considered the mortgage and determined that the mortgagees’ costs of the proceeding should be assessed on standard basis-whether mortgagees estopped from claiming other costs to be assessed on indemnity basis

COSTS – where costs agreement silent about folio length-whether oral agreement between mortgagees and their solicitor about 72 word folio length – whether mortgagor bound by mortgagees’ oral agreement about folio length

COSTS – where costs agreement silent about uplift charge on professional costs-whether oral agreement between mortgagees and their solicitor about uplift charge – where mortgagees agree in writing to pay uplift charge on costs for professional services performed previously – where no consideration from solicitors-whether mortgagor bound to pay uplift

MORTGAGES – interpretation of mortgage-whether mortgagee obliged to pay interest on mortgagees’ legal costs before the mortgagees pay legal costs – whether mortgagor obliged to pay interest on mortgagees’ legal costs before judgment for costs

MORTGAGES – interpretation of mortgagee-where mortgage provided that mortgagor pay mortgagees’ costs incurred or paid by the mortgagee in consequence of default-whether implication that mortgagees’ costs are to be reasonably incurred

MORTGAGES – MORTGAGEE’S COSTS – where mortgagees paid and incurred costs in consequence of mortgagor’s default and demanded payment from mortgagee – whether mortgagor requested itemised bill of costs – whether mortgagees demanded correct or excessive amount-where mortgagee provided no itemised bill of costs – where mortgagor tendered an amount-where tender rejected-whether tender too little – whether mortgagor ready willing…

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.

Continue reading Verhagen v Millard

Details

AGLC: Verhagen v Millard [2012] QDC 196
Case: [2012] QDC 196
Decision Date: 17 July 2012

CaseChat Overview and Summary

In the matter of Verhagen v Millard, the High Court of Australia was asked to consider several complex issues arising from a dispute between the parties. The case revolved around a mortgage agreement, the interpretation of which led to questions about the parties' respective obligations and rights, including their liability for costs. The Court had to determine whether certain compromises and agreements were enforceable, as well as the implications of these agreements on subsequent litigation. Additionally, the Court addressed the issue of costs, including the basis on which they should be assessed and whether certain costs were reasonably incurred.

The primary legal issues before the Court involved the enforceability of a compromise agreement where the parties had agreed to re-litigate a previously decided issue, and whether such an agreement was against public policy. The Court also had to decide whether the mortgagor was estopped from challenging the mortgagee's costs in a subsequent proceeding. Other issues included the interpretation of the mortgage agreement concerning the costs and interest payable by the mortgagor, and whether certain costs were reasonably incurred by the mortgagee. The Court further examined whether the mortgagor was bound by oral agreements between the mortgagees and their solicitor regarding the length of folios and uplift charges on professional costs.

The Court's reasoning and outcome were grounded in established legal principles and precedents. The Court found that the compromise agreement to re-litigate an issue was not against public policy and was therefore enforceable. It also held that the mortgagee was estopped from claiming costs outside the scope of the proceeding due to an Anshun estoppel. Regarding the interpretation of the mortgage agreement, the Court clarified that the mortgagor was not obliged to pay interest on the mortgagees' legal costs before judgment. The Court further held that certain costs were reasonably incurred by the mortgagee and that the mortgagor was bound by the oral agreements concerning the folio length and uplift charges. Finally, the Court determined that the assessment of the mortgagees' costs, including the cost of the notice of exercise of the power of sale, should not be reviewed.

The final orders of the Court were that the parties were to make further submissions on 23 July 2012. The case was adjourned to that date for final submissions and orders, with costs reserved.

Orders

Orders of the court

Liberty to the parties to make further submissions on 23 July 2012. Adjourned to 23 July 2012 for submissions and final orders. Costs reserved.

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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CITATION:	Verhagen & Anor v Millard [2012] QDC 196
PARTIES:	PETER EDWARD ANTHONY VERHAGEN (plaintiff) AND WILLHELMINA VERHAGEN (second Plaintiff) v WAYNE STANLEY MILLARD (defendant)
FILE NO/S:	BD 5367/09
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	17 July 2012
DELIVERED AT:	Brisbane
HEARING DATE:	25 and 26 May 2011, written submissions to 10 June 2011
JUDGE:	Andrews SC DCJ
ORDER:	Liberty to the parties to make further submissions on 23 July 2012. Adjourned to 23 July 2012 for submissions and final orders. Costs reserved.
CATCHWORDS:	CONTRACT–AGAINST PUBLIC POLICY – where the parties after judgment compromised – whether by compromise they agreed to re-litigate an issue previously decided –whether agreement to re-litigate against public policy –whether compromise void - where money paid into trust pursuant to compromise with a view to payer’s proving title to the money in further proceeding – whether title in issue in this proceeding-whether payer entitled to money ESTOPPEL – where the mortgagee provided that the mortgagor pay the mortgagees’ costs – where the mortgagee applied for costs after judgment – whether the application was for only costs of the proceeding – where the mortgagor submitted that costs “in regards to the mortgage are not a matter for determination” – where the mortgagee did not seek other than costs of the proceeding – where orders made about costs of the proceeding-where in subsequent proceeding the mortgagees claimed costs pursuant to the mortgage – whether an Anshun estoppel arises to prevent them ESTOPPEL – where the court in an earlier proceeding considered the mortgage and determined that the mortgagees’ costs of the proceeding should be assessed on standard basis-whether mortgagees estopped from claiming other costs to be assessed on indemnity basis COSTS – where costs agreement silent about folio length-whether oral agreement between mortgagees and their solicitor about 72 word folio length – whether mortgagor bound by mortgagees’ oral agreement about folio length COSTS – where costs agreement silent about uplift charge on professional costs-whether oral agreement between mortgagees and their solicitor about uplift charge – where mortgagees agree in writing to pay uplift charge on costs for professional services performed previously – where no consideration from solicitors-whether mortgagor bound to pay uplift MORTGAGES – interpretation of mortgage-whether mortgagee obliged to pay interest on mortgagees’ legal costs before the mortgagees pay legal costs – whether mortgagor obliged to pay interest on mortgagees’ legal costs before judgment for costs MORTGAGES – interpretation of mortgagee-where mortgage provided that mortgagor pay mortgagees’ costs incurred or paid by the mortgagee in consequence of default-whether implication that mortgagees’ costs are to be reasonably incurred MORTGAGES – MORTGAGEE’S COSTS – where mortgagees paid and incurred costs in consequence of mortgagor’s default and demanded payment from mortgagee – whether mortgagor requested itemised bill of costs – whether mortgagees demanded correct or excessive amount-where mortgagee provided no itemised bill of costs – where mortgagor tendered an amount-where tender rejected-whether tender too little – whether mortgagor ready willing…