Zabusky v Van Leeuwen - [2012] QSC 41

SUPREME COURT OF QUEENSLAND

CITATION:

Zabusky v Van Leeuwen [2012] QSC 41

PARTIES:

HARVEY ZABUSKY
(first applicant)
and
VIRGTEL LIMITED IBC NO 311178
(second applicant)
v
HENDRIK VAN LEEUWEN
(first respondent)
and
JAMES CONOMOS LAWYERS (A FIRM)
(second respondent)

FILE NO:

BS 4405 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

2 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

Daubney J

ORDER:

The applicants shall pay the first respondent’s costs of and incidental to the application for the joinder of Amalia Investments Ltd and the application for interlocutory injunctive relief (but excluding any costs associated with the hearing on 4 March 2011), such costs to be assessed on the indemnity basis.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON AN INDEMNITY BASIS – where the applicants brought an application that a company be joined as an applicant and, an application for interlocutory injunctive relief – where the first respondent was not served at the time of the initial hearing – where an interim order was made to preserve the status quo pending service of the application on the first respondent- where the applications were dismissed - where the claim for injunctive relief was not maintainable – where there was no prima facie cause of action against the first respondent - whether costs should be awarded against the applicants on an indemnity basis

Amos v Monsour Legal Costs Pty Ltd [2008] 1 Qd R 304, considered

Colgate-Palmolive Co v Cussons (1993) 46 FCR 225, applied

Emanuel Management Pty Ltd (in liquidation) & Ors v Foster’s brewing Group Ltd & Ors and Coopers & Lybrand & Ors [2003] QSC 299, considered

Zabusky & Anor v van Leeuwen & Anor [2011] QSC 270, cited

COUNSEL:

G C Newton SC with SS Monks for the first respondent

SOLICITORS:

Tucker & Cowen for the applicants
James Conomos Lawyers for the respondents

When I gave the principal judgment dismissing the application for the joinder of Amalia Investments Ltd (“Amalia”) and the application for interlocutory injunctive relief[1], I called on the parties for submissions on costs.
[1]Zabusky & Anor v van Leeuwen & Anor [2011] QSC 270

Those submissions have been made, but not before they became entangled with submissions that the parties in a related proceeding (No 6547 of 2005) made in respect of a number of costs matters in that proceeding and the making of submissions by Mrs Amalia Zabusky, who contends that she is now acting for herself in the other proceeding. I do not need to be concerned with those matters for present purposes, which are concerned only with the applications made in this proceeding (No 4405 of 2010).

It will be recalled that the application for injunctive relief first came on without the first respondent, Mr Van Leeuwen, having been served.[2] On the final hearing of both of these applications, however, Mr Van Leeuwen was represented and the applications were dismissed.…

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.

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Details

Case: [2012] QSC 41
Decision Date: 2 March 2012

CaseChat Overview and Summary

The case of Zabusky v Van Leeuwen involved the applicants, Zabusky and another, bringing proceedings against the respondents, including Van Leeuwen, to join a company as an applicant and seeking interlocutory injunctive relief. The dispute came before the court as the applicants sought to have a company, Amalia Investments Ltd, joined as an applicant in their proceedings. Additionally, the applicants sought an interlocutory injunction to prevent certain actions by the respondents. The first respondent, Van Leeuwen, was not served at the time of the initial hearing, leading to an interim order being made to preserve the status quo pending service of the application on the first respondent. Ultimately, both applications were dismissed by the court. The court found that the claim for injunctive relief was not maintainable, as there was no prima facie cause of action against the first respondent.

The primary legal issue before the court was whether the applicants should be ordered to pay the first respondent's costs on an indemnity basis. The applicants argued that the costs should not be awarded on an indemnity basis, while the first respondent contended that the circumstances warranted such an order. The court considered the principles governing costs in Australian litigation, including the general rule that costs follow the event. The court also took into account the fact that the applications were dismissed and that there was no prima facie cause of action against the first respondent. The court found that the circumstances of the case justified departing from the general rule and ordering the applicants to pay the first respondent's costs on an indemnity basis.

In reaching its decision, the court emphasised the importance of the applicants conducting proper procedural steps before bringing their applications. The court noted that the failure to serve the first respondent at the time of the initial hearing led to an interim order being made to preserve the status quo. The court also highlighted that the applications were ultimately dismissed, and there was no prima facie cause of action against the first respondent. Based on these factors, the court concluded that the applicants should be ordered to pay the first respondent's costs on an indemnity basis. The court further specified that the costs were to be assessed, excluding any costs associated with the hearing on 4 March 2011.

The court's orders were that the applicants shall pay the first respondent's costs of and incidental to the application for the joinder of Amalia Investments Ltd and the application for interlocutory injunctive relief (excluding any costs associated with the hearing on 4 March 2011). The costs were to be assessed on the indemnity basis. This decision underscores the importance of proper procedural steps in litigation and the consequences of failing to adhere to them.

Orders

Orders of the court

The applicants shall pay the first respondent’s costs of and incidental to the application for the joinder of Amalia Investments Ltd and the application for interlocutory injunctive relief (but excluding any costs associated with the hearing on 4 March 2011), such costs to be assessed on the indemnity 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Zabusky v Van Leeuwen [2012] QSC 41
PARTIES:	HARVEY ZABUSKY (first applicant) and VIRGTEL LIMITED IBC NO 311178 (second applicant) v HENDRIK VAN LEEUWEN (first respondent) and JAMES CONOMOS LAWYERS (A FIRM) (second respondent)
FILE NO:	BS 4405 of 2010
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	2 March 2012
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions
JUDGE:	Daubney J
ORDER:	The applicants shall pay the first respondent’s costs of and incidental to the application for the joinder of Amalia Investments Ltd and the application for interlocutory injunctive relief (but excluding any costs associated with the hearing on 4 March 2011), such costs to be assessed on the indemnity basis.
CATCHWORDS:	PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON AN INDEMNITY BASIS – where the applicants brought an application that a company be joined as an applicant and, an application for interlocutory injunctive relief – where the first respondent was not served at the time of the initial hearing – where an interim order was made to preserve the status quo pending service of the application on the first respondent- where the applications were dismissed - where the claim for injunctive relief was not maintainable – where there was no prima facie cause of action against the first respondent - whether costs should be awarded against the applicants on an indemnity basis Amos v Monsour Legal Costs Pty Ltd [2008] 1 Qd R 304, considered Colgate-Palmolive Co v Cussons (1993) 46 FCR 225, applied Emanuel Management Pty Ltd (in liquidation) & Ors v Foster’s brewing Group Ltd & Ors and Coopers & Lybrand & Ors [2003] QSC 299, considered Zabusky & Anor v van Leeuwen & Anor [2011] QSC 270, cited
COUNSEL:	G C Newton SC with SS Monks for the first respondent
SOLICITORS:	Tucker & Cowen for the applicants James Conomos Lawyers for the respondents