Vowles v Osgood (No 2) - [2012] QSC 126

SUPREME COURT OF QUEENSLAND

CITATION:

Vowles v Osgood & Anor (No 2) [2012] QSC 126

PARTIES:

BENJAMIN MICHAEL VOWLES
(plaintiff)
v
ROBERT GEORGE OSGOOD
(first defendant)
And
SUNCORP METWAY INSURANCE LTD
(second defendant)

FILE NO/S:

S111 of 2011

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

21 May 2012

DELIVERED AT:

Rockhampton

HEARING DATE:

26-28 March 2012

JUDGE:

McMeekin J

ORDER:

(a)     The judgment is amended by the deletion of the amount of $450,740 and the insertion of the amount of $449,763;

(b)     The second defendant is ordered to pay the plaintiff’s costs of the proceedings on the District Court scale on the standard basis;

(c)     The second defendant’s application for costs is dismissed.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL PRINCIPLES – where basis on which costs should be awarded in issue – where second defendant applies for costs of ex parte application

Deeson Heavy Haulage Pty Ltd v. Cox & Ors (No 2) [2009] QSC 348
Kenny & Anor v Eyears & Anor [2004] QSC 059

Kern v Evans & Ors [2005] QCA 416

King v Nolan [1992] 2 Qd R 498
Michael v The Nominal Defendant (Queensland) [1995] QSC 001
Uniform Civil Procedure Rules 1999 (Qld) r 393, 697
Civil Liability Act 2003 (Qld) s 60

COUNSEL:

GF Crow SC for the plaintiff

RD Green for the second defendant

SOLICITORS:

Chris Trevor & Associates for the plaintiff

Grant & Simpson for the second defendant

McMEEKIN J: In this matter I gave judgment in favour of the plaintiff against the defendant in the sum of $450,740. The parties are agreed that I applied the wrong interest rate to past losses, the interest rate being set by s 60 Civil Liability Act 2003, and the judgment sum needs to be altered. I accept the submissions made. The judgment will be adjusted so that I give judgment for the plaintiff in the sum of $449,763.

I indicated at the time of delivering my reasons that I would hear from counsel as to costs. I have since received submissions from the parties.

The plaintiff seeks that costs be awarded on the Supreme Court scale. The second defendant opposes that order and submits that costs should be awarded on the District Court scale. The second defendant further applies for costs in relation to an ex parte application for the suppression of surveillance evidence.

Supreme or District Court Scale?

Rules 697(3) and 697(4) Uniform Civil Procedure Rules 1999 (Qld) (UCPR) provide:
(3) Subrule (4) applies if the only relief obtained by a plaintiff in a proceeding in the Supreme Court is relief that, when the proceeding began, could have been given by the District Court, but not a Magistrates Court.
(4) The costs the plaintiff may recover must be assessed as if the proceeding had been started in the District Court, unless the court orders otherwise.
Proceedings were commenced on 21 March 2011 and after the jurisdictional limit of the District Court was increased to $750,000.[1] As the Rules indicate,…

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 Vowles v Osgood (No 2)

Details

AGLC: Vowles v Osgood (No 2) [2012] QSC 126
Case: [2012] QSC 126
Decision Date: 21 May 2012

CaseChat Overview and Summary

The case of Vowles v Osgood (No 2) involved the second defendant applying for costs incurred from an ex parte application. The original dispute was between the plaintiff and the first defendant, with the second defendant later joining the proceedings. The matter was heard in the Supreme Court of New South Wales. The court was tasked with determining the appropriate costs for the ex parte application and the overall proceedings. The second defendant argued that they should be awarded costs from the ex parte application due to the plaintiff's failure to provide adequate information.

The court considered the general principles of awarding costs in legal proceedings, focusing on the circumstances surrounding the ex parte application. It was crucial to determine whether the application was necessary and whether the plaintiff acted unreasonably in failing to provide the required information. The court also assessed the overall conduct of the parties in the proceedings to decide on the standard basis for awarding costs. Given the second defendant's application for costs from the ex parte application and the plaintiff's successful opposition, the court had to balance these factors.

The court ruled that the judgment should be amended to reflect a corrected amount, dismissing the second defendant's application for costs from the ex parte application. Instead, the court ordered the second defendant to pay the plaintiff's costs on the District Court scale on the standard basis. This decision was based on the overall conduct of the parties and the necessity of the ex parte application. The court emphasised that the plaintiff's failure to provide the requested information did not warrant costs from the ex parte application, as the application was deemed necessary under the circumstances.

The final orders included an amendment to the judgment to correct the amount, an order for the second defendant to pay the plaintiff's costs on the District Court scale on the standard basis, and a dismissal of the second defendant's application for costs from the ex parte application.

Orders

Orders of the court

(a) The judgment is amended by the deletion of the amount of $450,740 and the insertion of the amount of $449,763;

(b) The second defendant is ordered to pay the plaintiff’s costs of the proceedings on the District Court scale on the standard basis;

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Vowles v Osgood & Anor (No 2) [2012] QSC 126
PARTIES:	BENJAMIN MICHAEL VOWLES (plaintiff) v ROBERT GEORGE OSGOOD (first defendant) And SUNCORP METWAY INSURANCE LTD (second defendant)
FILE NO/S:	S111 of 2011
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court Rockhampton
DELIVERED ON:	21 May 2012
DELIVERED AT:	Rockhampton
HEARING DATE:	26-28 March 2012
JUDGE:	McMeekin J
ORDER:	(a) The judgment is amended by the deletion of the amount of $450,740 and the insertion of the amount of $449,763; (b) The second defendant is ordered to pay the plaintiff’s costs of the proceedings on the District Court scale on the standard basis; (c) The second defendant’s application for costs is dismissed.
CATCHWORDS:	PROCEDURE – COSTS – GENERAL PRINCIPLES – where basis on which costs should be awarded in issue – where second defendant applies for costs of ex parte application Deeson Heavy Haulage Pty Ltd v. Cox & Ors (No 2) [2009] QSC 348 Kenny & Anor v Eyears & Anor [2004] QSC 059 Kern v Evans & Ors [2005] QCA 416 King v Nolan [1992] 2 Qd R 498 Michael v The Nominal Defendant (Queensland) [1995] QSC 001 Uniform Civil Procedure Rules 1999 (Qld) r 393, 697 Civil Liability Act 2003 (Qld) s 60
COUNSEL:	GF Crow SC for the plaintiff RD Green for the second defendant
SOLICITORS:	Chris Trevor & Associates for the plaintiff Grant & Simpson for the second defendant