Verhagen v Millard - [2013] QCA 202

SUPREME COURT OF QUEENSLAND

CITATION:

Verhagen & Anor v Millard [2013] QCA 202

PARTIES:

PETER EDWARD ANTHONY VERHAGEN
(first applicant)
WILLHELMINA VERHAGEN
(second applicant)
v
WAYNE STANLEY MILLARD
(respondent)

FILE NO/S:

Appeal No 8129 of 2012
DC No 3647 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil) – Further Order

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

26 July 2013

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Margaret McMurdo P and Atkinson and Martin JJ
Judgment of the Court

ORDER:

The applicants pay the respondent's costs of and incidental to the application on the indemnity basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the applicants' application for leave to appeal judgment under s 118 District Court of Queensland Act 1967 (Qld) was refused with costs – where both parties were granted leave to make submissions as to the respondent's proposed application for a different costs order – where the respondent subsequently applied for indemnity costs – where the respondent had not sought such an order in his written submissions or orally in Court and had not sought leave to apply for an indemnity costs order after the hearing, as required by Practice Direction 3 of 2013 – where the respondent contends that the applicants rejected a reasonable offer to settle, had no real prospect of a successful appeal, abandoned a fundamental part of their argument before the primary judge, sought to argue a point not litigated at trial and would not have brought the application had they been properly advised – where the primary judge had found in favour of the respondent – where the applicants' application involved a small monetary amount – whether the remarkable combination of circumstances of this case support an application for costs on the indemnity basis

Uniform Civil Procedure Rules 1999 (Qld), r 703, r 766(1)(d), ch 9 pt 5

Millard v Verhagen & Anor, unreported, District Court of Queensland, Tutt DCJ, DC No 1398 of 2007, 3 October 2008, related
Tector v FAI General Insurance Company Ltd [2001] 2 Qd R 463; [2000] QCA 426, cited
Verhagen & Anor v Millard[2013] QCA 122, related

COUNSEL:

No appearance by the applicant, the applicants' submissions were heard on the papers
No appearance by the respondent, the respondent's submissions were heard on the papers

SOLICITORS:

Colwell Wright Solicitors for the applicants
Forbes Dowling Lawyers for the respondent

THE COURT: On 21 May 2013, this Court ordered that Mr and Mrs Verhagen's application for leave to appeal be refused with costs. Following the delivery of those orders, Fraser JA further ordered that the parties have leave to make submissions upon a proposed application by the respondent, Mr Millard, for a different costs order. Mr Millard has now applied for an order that his costs in respect of the application for leave to appeal be paid on the indemnity basis. He…

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 & Anor v Millard [2013] QCA 202
Case: [2013] QCA 202
Decision Date: 26 July 2013

CaseChat Overview and Summary

Verhagen v Millard is a case before the Queensland Court of Appeal concerning an application for leave to appeal a judgment from the District Court. The applicants, Verhagen, sought to appeal a decision in their favour, which awarded them a small monetary amount. The respondent, Millard, applied for indemnity costs, arguing that the applicants had no real prospect of success in their appeal and had acted unreasonably in various respects. The primary judge had already ruled in favour of the applicants and denied the application for leave to appeal, ordering the applicants to pay the respondent's costs of the application.

The central legal issues revolved around whether the applicants' actions warranted indemnity costs, given that they had not sought such an order as required by the Practice Direction, and whether the unusual circumstances of the case justified such an award. The respondent argued that the applicants' appeal was frivolous, that they had abandoned a key part of their argument, attempted to argue new points not raised at trial, and had rejected a reasonable settlement offer. The applicants contended that the respondent had not followed proper procedure in seeking indemnity costs and that the amount in dispute did not warrant such an order.

The Court of Appeal found that the respondent's application for indemnity costs was not made in accordance with the Practice Direction, which requires a party to seek leave to apply for such costs after the hearing. Despite this, the Court considered the remarkable circumstances of the case, including the applicants' lack of a real prospect of success, their unreasonable conduct, and the small monetary amount involved. The Court concluded that these factors warranted an indemnity costs order in favour of the respondent.

The Court of Appeal ordered that the applicants pay the respondent's costs of and incidental to the application on the indemnity basis. This decision highlights the importance of following procedural requirements when seeking indemnity costs and underscores the Court's discretion to award such costs in cases where the circumstances are considered remarkable.

Orders

Orders of the court

The applicants pay the respondent's costs of and incidental to the application on the indemnity basis.

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 [2013] QCA 202
PARTIES:	PETER EDWARD ANTHONY VERHAGEN (first applicant) WILLHELMINA VERHAGEN (second applicant) v WAYNE STANLEY MILLARD (respondent)
FILE NO/S:	Appeal No 8129 of 2012 DC No 3647 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil) – Further Order
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	26 July 2013
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Margaret McMurdo P and Atkinson and Martin JJ Judgment of the Court
ORDER:	The applicants pay the respondent's costs of and incidental to the application on the indemnity basis.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the applicants' application for leave to appeal judgment under s 118 District Court of Queensland Act 1967 (Qld) was refused with costs – where both parties were granted leave to make submissions as to the respondent's proposed application for a different costs order – where the respondent subsequently applied for indemnity costs – where the respondent had not sought such an order in his written submissions or orally in Court and had not sought leave to apply for an indemnity costs order after the hearing, as required by Practice Direction 3 of 2013 – where the respondent contends that the applicants rejected a reasonable offer to settle, had no real prospect of a successful appeal, abandoned a fundamental part of their argument before the primary judge, sought to argue a point not litigated at trial and would not have brought the application had they been properly advised – where the primary judge had found in favour of the respondent – where the applicants' application involved a small monetary amount – whether the remarkable combination of circumstances of this case support an application for costs on the indemnity basis Uniform Civil Procedure Rules 1999 (Qld), r 703, r 766(1)(d), ch 9 pt 5 Millard v Verhagen & Anor, unreported, District Court of Queensland, Tutt DCJ, DC No 1398 of 2007, 3 October 2008, related Tector v FAI General Insurance Company Ltd [2001] 2 Qd R 463; [2000] QCA 426, cited Verhagen & Anor v Millard[2013] QCA 122, related
COUNSEL:	No appearance by the applicant, the applicants' submissions were heard on the papers No appearance by the respondent, the respondent's submissions were heard on the papers
SOLICITORS:	Colwell Wright Solicitors for the applicants Forbes Dowling Lawyers for the respondent