Zavodny v Couper and QBE (No 2) - [2018] QSC 259

SUPREME COURT OF QUEENSLAND

CITATION:

Zavodny v Couper & QBE (No 2) [2018] QSC 259

PARTIES:

ALAN FRANK ZAVODNY
(Applicant)
v
KEVIN RAYMOND COUPER
(First Respondent)
and
QBE INSURANCE (AUSTRALIA) LIMITED

(ACN 003 191 035)

(Second Respondent)

FILE NO/S:

SC 523 of 2016

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

9 November 2018

DELIVERED AT:

Cairns

HEARING DATES:

Applicant’s written submissions 12 October 2018

Respondents’ written submissions 23 October 2018

JUDGE:

Henry J

ORDERS:

1. The applicant will pay the respondents’ costs thrown away by the adjournment on 7 September 2018 of the application filed 27 August 2018 (Court doc 36) to be assessed on the standard basis unless agreed.

2. The respondents will pay the applicant’s costs of and incidental to the application filed 27 August 2018 (Court doc 36) to be assessed on the standard basis unless agreed, excluding the applicant’s costs thrown away by the adjournment of that application on 7 September 2018.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – OTHER PARTICULAR CASES AND MATTERS – where there was an application for inspection of surveillance reports – where the application was adjourned – where the provision of the respondents’ outline of argument prompted the applicant’s request for the adjournment – whether the applicant should have been prepared to meet the arguments in the outline – whether the substance of the respondents’ argument should have been flagged in the respondents’ rule 445 letter – whether Uniform Civil Procedure Rules 1999 (Qld) r 445 requires an applicant or respondent to include arguments to be advanced in support of the specified explanation as to why the applicant should have the relief.

Nolan v Marson Transport Pty Ltd (2001) 53 NSWLR 116, cited.
Parr v Bavarian Steakhouse Pty Ltd [2001] 2 Qd R 196, cited.
Schofield v Hopman & Anor [2017] QSC 297, cited.

Uniform Civil Procedure Rules 1999 (Qld) r 213, r 213(1)(b), r 393 (2), r 444, r 445
Motor Insurance Act 1994 (Qld) ss 47, 48

COUNSEL:

AR Philp QC for the applicant
R Morton for the respondents

SOLICITORS:

Roati Legal for the applicant
Barry Nilsson for the respondents

It is necessary to determine orders as to costs in respect of the application granted in this matter on 16 October 2018.
That application, filed 27 August 2018, sought the production for inspection of the surveillance reports referred to in respondents’ updated list of documents dated 22 February 2018.
The application came before the Court for hearing on 7 September 2018. It was adjourned at the request of the applicant’s counsel (who is not the present counsel), with the determination of liability for costs thrown away by the adjournment reserved.
Setting aside the question of those costs, it is not suggested that the costs otherwise of the application ought not follow the event.
On the face of it, the applicant ought pay the respondents’ costs thrown away by the adjournment…

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.

Keep reading for free

Create a free CaseChat account to read Zavodny v Couper and QBE (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] QSC 259
Decision Date: 9 November 2018

CaseChat Overview and Summary

The case of Zavodny v Couper and QBE (No 2) involved an application for the inspection of surveillance reports. The applicants sought to inspect the surveillance reports and the respondents opposed the application. The dispute was heard in the Queensland Supreme Court. The applicants argued that the respondents should have been prepared to meet the arguments in their outline of argument, while the respondents contended that the applicants should have been aware of the substance of their arguments, which should have been flagged in the respondents' rule 445 letter. The court was required to determine whether the Uniform Civil Procedure Rules 1999 (Qld) r 445 mandated that an applicant or respondent must include the arguments to be advanced in support of the specified explanation as to why the applicant should have the relief.

The court considered the obligations under rule 445 of the Uniform Civil Procedure Rules 1999 (Qld) and determined that it did not require an applicant or respondent to include the arguments to be advanced in support of the specified explanation as to why the applicant should have the relief. The court held that the respondents were not required to flag the substance of their arguments in their rule 445 letter, and the applicants should have been prepared to meet the arguments in the respondents' outline of argument. The court also found that the applicants' request for the adjournment was unreasonable, and therefore, the applicants should bear the costs thrown away by the adjournment. However, the respondents were ordered to pay the applicants' costs of and incidental to the application, excluding the costs thrown away by the adjournment.

The court ordered that the applicants would pay the respondents' costs thrown away by the adjournment on 7 September 2018 of the application filed 27 August 2018 (Court doc 36) to be assessed on the standard basis unless agreed. The respondents were ordered to pay the applicants' costs of and incidental to the application filed 27 August 2018 (Court doc 36) to be assessed on the standard basis unless agreed, excluding the applicants' costs thrown away by the adjournment of that application on 7 September 2018.

Orders

Orders of the court

1. The applicant will pay the respondents’ costs thrown away by the adjournment on 7 September 2018 of the application filed 27 August 2018 (Court doc 36) to be assessed on the standard basis unless agreed.

2. The respondents will pay the applicant’s costs of and incidental to the application filed 27 August 2018 (Court doc 36) to be assessed on the standard basis unless agreed, excluding the applicant’s costs thrown away by the adjournment of that application on 7 September 2018.

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:	Zavodny v Couper & QBE (No 2) [2018] QSC 259
PARTIES:	ALAN FRANK ZAVODNY (Applicant) v KEVIN RAYMOND COUPER (First Respondent) and QBE INSURANCE (AUSTRALIA) LIMITED (ACN 003 191 035) (Second Respondent)
FILE NO/S:	SC 523 of 2016
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	9 November 2018
DELIVERED AT:	Cairns
HEARING DATES:	Applicant’s written submissions 12 October 2018 Respondents’ written submissions 23 October 2018
JUDGE:	Henry J
ORDERS:	1. The applicant will pay the respondents’ costs thrown away by the adjournment on 7 September 2018 of the application filed 27 August 2018 (Court doc 36) to be assessed on the standard basis unless agreed. 2. The respondents will pay the applicant’s costs of and incidental to the application filed 27 August 2018 (Court doc 36) to be assessed on the standard basis unless agreed, excluding the applicant’s costs thrown away by the adjournment of that application on 7 September 2018.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – OTHER PARTICULAR CASES AND MATTERS – where there was an application for inspection of surveillance reports – where the application was adjourned – where the provision of the respondents’ outline of argument prompted the applicant’s request for the adjournment – whether the applicant should have been prepared to meet the arguments in the outline – whether the substance of the respondents’ argument should have been flagged in the respondents’ rule 445 letter – whether Uniform Civil Procedure Rules 1999 (Qld) r 445 requires an applicant or respondent to include arguments to be advanced in support of the specified explanation as to why the applicant should have the relief. Nolan v Marson Transport Pty Ltd (2001) 53 NSWLR 116, cited. Parr v Bavarian Steakhouse Pty Ltd [2001] 2 Qd R 196, cited. Schofield v Hopman & Anor [2017] QSC 297, cited. Uniform Civil Procedure Rules 1999 (Qld) r 213, r 213(1)(b), r 393 (2), r 444, r 445 Motor Insurance Act 1994 (Qld) ss 47, 48
COUNSEL:	AR Philp QC for the applicant R Morton for the respondents
SOLICITORS:	Roati Legal for the applicant Barry Nilsson for the respondents