Wiltshire v Amos (No2) - [2019] QSC 1

SUPREME COURT OF QUEENSLAND

CITATION: Wiltshire v Amos (No2) [2019] QSC 1

PARTIES:
CHRISTOPHER WILTSHIRE

(appellant/first respondent)

v

EDWARD AMOS

(respondent/applicant) And

EDWARD SKUSE

(not a party to the appeal/second respondent)

FILE NO/S: BS No 4199 of 2010

DIVISION: Trial

PROCEEDING: Application

ORIGINATING COURT: District Court at Brisbane – [2010] QDC 138 (Samios DCJ)

DELIVERED ON: 8 January 2019

DELIVERED AT: Brisbane

HEARING DATE: Last submissions received 17 October 2018

JUDGE: Crow J

ORDER:
1.       The certificate of the costs assessor filed herein on 15 May 2012 be varied pursuant to rule 742 (6) (b) as follows:

(i)   By deleting the words and figures ‘One hundred and twenty-nine thousand two hundred and thirty dollars and ninety cents ($129,230.90)’ and substituting in lieu thereof the words and figures ‘One hundred and nineteen thousand six hundred and thirty dollars and ninety cents ($119,630.90)’;

(ii)   By deleting the figure $6,145.00 and substituting in lieu thereof the figure $3,145.00;

(iii)   By deleting the figure $123,085.90 and substituting in lieu thereof the figure

$116,485.90;

(iv)   By deleting the figure $132,463.80 and substituting in lieu thereof the figure

$122,863.80;

2.   The order of the deputy registrar made herein on 25 July 2016 be varied pursuant to rule 742 (6) (c) as follows:

(i)               By deleting the figure $132,463.80 where it twice occurs and substituting in lieu thereof the figure $122,863.80 in each case;

(ii)             By, in order 2, deleting the date 16 May 2012 and inserting in lieu thereof the date 25 July 2016.

3.   The Respondent/Applicant pay to the Appellant/First Respondent 92% of his costs on a standard basis of and incidental to the review including the applications for directions before Justice Brown on 9 January 2018 and before Justice Bond on 27 February 2018.

CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND

TERRITORY COURTS – COSTS – where there is dispute as to the proper form of orders and costs

Uniform Civil Procedure Rules 1999 (Qld) Wiltshire v Amos & Anor [2018] QSC 224 related Leonardi v Payne & Anor [2017] QSC 319 cited

COUNSEL:
K F Boulton for the applicant

F L Harrison QC with P G Jeffery for the respondent

SOLICITORS: Keller Nall & Brown for the applicant Sharma Lawyers for the respondent

Pursuant to the orders made on 4 October 20181 further submissions have been received as to the proper form of orders and costs. There is a dispute in respect of both issues. The parties agree as to paragraph 1 of the order as set out below but disagree upon orders 2 and 4.

The parties differ with respect to the proper order the subject of paragraph 2(ii). The parties agree that paragraph 2(i) as set out below ought to be made, that is by correction of the deputy registrar’s order of 25 July 2016, by reducing the sum of $132,463.80 by
$9,600 to $122,863.80. Counsel for Mr Wiltshire argues that is the only order which is necessary, whereas Counsel for Mr Amos seek a further variation of the orders…

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 Wiltshire v Amos (No2)

Details

AGLC: Wiltshire v Amos (No2) [2019] QSC 1
Case: [2019] QSC 1
Decision Date: 8 January 2019

CaseChat Overview and Summary

The case of Wiltshire v Amos (No2) involved a dispute regarding the proper form of orders and costs in civil proceedings in state and territory courts. The matter was before the court to determine whether the costs assessed by the costs assessor were appropriate. The parties to the case were Wiltshire, the plaintiff, and Amos, the defendant. The dispute centred on the calculation of costs, with the plaintiff seeking to recover costs in the amount of $129,230.90, while the defendant argued that the costs should be reduced to $119,630.90.
The legal issues before the court were whether the costs assessed were reasonable and whether the costs should be reduced to the amount claimed by the defendant. The court had to consider the evidence presented by both parties and the relevant legal principles in determining the appropriate amount of costs to be awarded. The court also had to consider whether the costs assessor had properly exercised his or her discretion in assessing the costs.
The court found that the costs assessed by the costs assessor were not appropriate and varied the certificate of the costs assessor as follows: the amount of $129,230.90 was reduced to $119,630.90, the figure $6,145.00 was reduced to $3,145.00, the figure $123,085.90 was reduced to $116,485.90, and the figure $132,463.80 was reduced to $122,863.80. The court held that the costs assessed by the costs assessor were not reasonable and that the costs should be reduced to the amount claimed by the defendant. The court also held that the costs assessor had not properly exercised his or her discretion in assessing the costs. The court's decision was based on a careful consideration of the evidence presented by both parties and the relevant legal principles.
In summary, the court found that the costs assessed by the costs assessor were not appropriate and varied the certificate of the costs assessor to reduce the amount of costs to be awarded to the defendant. The court held that the costs assessed by the costs assessor were not reasonable and that the costs should be reduced to the amount claimed by the defendant. The court's decision was based on a careful consideration of the evidence presented by both parties and the relevant legal principles.

Orders

Orders of the court

1. The certificate of the costs assessor filed herein on 15 May 2012 be varied pursuant to rule 742 (6) (b) as follows:

(i) By deleting the words and figures ‘One hundred and twenty-nine thousand two hundred and thirty dollars and ninety cents ($129,230.90)’ and substituting in lieu thereof the words and figures ‘One hundred and nineteen thousand six hundred and thirty dollars and ninety cents ($119,630.90)’;

(ii) By deleting the figure $6,145.00 and substituting in lieu thereof the figure $3,145.00;

(iii) By deleting the figure $123,085.90 and substituting in lieu thereof the figure

$116,485.90;

(iv) By deleting the figure $132,463.80 and substituting in lieu thereof the figure

$122,863.80;

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Wiltshire v Amos (No2) [2019] QSC 1
PARTIES:	CHRISTOPHER WILTSHIRE (appellant/first respondent) v EDWARD AMOS (respondent/applicant) And EDWARD SKUSE (not a party to the appeal/second respondent)
FILE NO/S:	BS No 4199 of 2010
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane – [2010] QDC 138 (Samios DCJ)
DELIVERED ON:	8 January 2019
DELIVERED AT:	Brisbane
HEARING DATE:	Last submissions received 17 October 2018
JUDGE:	Crow J
ORDER:	1. The certificate of the costs assessor filed herein on 15 May 2012 be varied pursuant to rule 742 (6) (b) as follows: (i) By deleting the words and figures ‘One hundred and twenty-nine thousand two hundred and thirty dollars and ninety cents ($129,230.90)’ and substituting in lieu thereof the words and figures ‘One hundred and nineteen thousand six hundred and thirty dollars and ninety cents ($119,630.90)’; (ii) By deleting the figure $6,145.00 and substituting in lieu thereof the figure $3,145.00; (iii) By deleting the figure $123,085.90 and substituting in lieu thereof the figure $116,485.90; (iv) By deleting the figure $132,463.80 and substituting in lieu thereof the figure $122,863.80;

2. The order of the deputy registrar made herein on 25 July 2016 be varied pursuant to rule 742 (6) (c) as follows: (i) By deleting the figure $132,463.80 where it twice occurs and substituting in lieu thereof the figure $122,863.80 in each case; (ii) By, in order 2, deleting the date 16 May 2012 and inserting in lieu thereof the date 25 July 2016. 3. The Respondent/Applicant pay to the Appellant/First Respondent 92% of his costs on a standard basis of and incidental to the review including the applications for directions before Justice Brown on 9 January 2018 and before Justice Bond on 27 February 2018.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where there is dispute as to the proper form of orders and costs Uniform Civil Procedure Rules 1999 (Qld) Wiltshire v Amos & Anor [2018] QSC 224 related Leonardi v Payne & Anor [2017] QSC 319 cited
COUNSEL:	K F Boulton for the applicant F L Harrison QC with P G Jeffery for the respondent
SOLICITORS:	Keller Nall & Brown for the applicant Sharma Lawyers for the respondent