Wallis v Hunt

[2019] QDC 33

DISTRICT COURT OF QUEENSLAND

CITATION: 

Wallis v Hunt & Ors [2019] QDC 33

PARTIES:

KATRINA LEIGH WALLIS

(Plaintiff)

v

ANTHONY (AKA TONY) ROGER HUNT

(First Defendant)

and

SIMONE AMBER GORDON

(Second Defendant)

and

MARK MCKENZIE TAYLOR

(Third Defendant)

FILE NO/S:

2309/18

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Qld, Brisbane

DELIVERED ON:

19 March 2019 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

19 March 2019

JUDGE:

Reid DCJ

ORDER:

1.          The plaintiff pay the defendants’ costs of and incidental to the application filed on the 8th of August 2018 to be an assessed on an indemnity basis.

2.          The defendants’ application filed on the 12th of February 2019 be dismissed.

3.          The plaintiff pay the defendants’ costs of and incidental to the application filed on the 12th of February 2019 including reserved costs to be assessed on the standard basis.

4.          The plaintiff have leave to file a further amended claim and further amended statement of claim.

5.          The plaintiff’s solicitor, within seven days of receipt of these reasons, and those delivered on 15 November 2018, from my Associate, provide to the plaintiff a copy of those reasons.

CATCHWORDS:

Costs – where the plaintiff’s claim not properly articulated by her legal advisers – whether to award costs on an indemnity basis

Cases:

Colgate-Palmolive and Anor v Cussons Pty Ltd [1993] 118 ALR 248

UCPR rr 16, 293

COUNSEL:

D J Topp for the plaintiff

B Rooks (solicitor) for the first, second and third defendants

SOLICITORS:

S J Gurnsey & Company for the plaintiff

Macpherson Kelley for the first, second and third defendants

1. Because of the multiplicity of applications in this matter, I shall refer to the parties as plaintiff and defendants. The matter originally came before me last year on an application by the defendants to set aside the plaintiff’s claim pursuant to r 16 of the Uniform Civil Procedure Rules (“UCPR”).  The original claim and statement of claim were, I think it is fair to say, fraught with error.  I concluded this was due to the inability of the plaintiff’s legal advisors to properly plead the plaintiff’s case.  I said in my judgment (see Wallis v Hunt & Ors [2018] QDC 234) in that matter that the pleading itself was poorly drafted and appeared to confuse both the facts of the matter and the nature of the plaintiff’s remedy.

1. Ultimately I gave the plaintiff leave to amend her claim and statement of claim to recover damages for breach of contract and/or for money had and received, generally in accordance with part of a proposed amended statement of claim which had been provided to me.  I did indicate when making such orders that, in my view, the form of the claim as currently pleaded remained open to challenge by the defendants and that the plaintiff should ensure the claim was properly pleaded and particularised.

1. I also indicated, subject to submissions to the contrary, that I would order the plaintiff pay the defendants’ costs of and…