Zuecker v Bruggmann (No 2) - [2016] QSC 115

SUPREME COURT OF QUEENSLAND

CITATION:

Zuecker v Bruggmann (No 2) [2016] QSC 115

PARTIES:

NICOLETTA IRENE ZUECKER

(plaintiff)

v

RUTH BRUGGMANN

(defendant)

FILE NO/S:

SC No 8751 of 2012

DIVISION:

Trial Division

PROCEEDING:

Application for Costs

DELIVERED ON:

30 May 2016

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Bond J

ORDER:

The orders of the Court are that:

(a) The plaintiff’s costs thrown away by the adjournments of the trial on 3, 4 and 5 November 2015 be the plaintiff’s costs in the proceeding.

(b) The plaintiff’s costs of its application for a costs order in respect of those costs be the plaintiff’s costs in the proceeding.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – OTHER PARTICULAR CASES AND MATTERS – where trial listed for five day hearing – where self-represented defendant became ill on the second day of trial – where trial adjourned and costs of adjournment reserved – appropriate costs order in the circumstances

Earp Woodcock Beveridge & Co Ltd v Gordon & Ors (1927) 44 WN(NSW) 123, cited
Pell v Linnell (1868) LR 3 CP 441, cited
Sandvik Mining and Construction Australia Pty Ltd v Dempsey Australia Pty Ltd & Ors [2012] QSC 102, cited

State of Queensland v Brooks & McCabe [2006] QCA 523, considered

Zuecker v Bruggmann [2016] QSC 53, cited

COUNSEL:

P W Hackett for the plaintiff

R J Clutterbuck for the defendant

SOLICITORS:

Rose Litigation Lawyers for the plaintiff

Turnbull Mylne for the defendant

This matter came on for trial before me on 2 November 2015. It had been set down for a 5 day hearing.
The trial concerned a property in Mudgeeraba and claims concerning money spent in relation to –
(a)the acquisition of a half share of the property;
(b)expenses incurred in relation to the property; and
(c)the development of the property.
The plaintiff pursues the defendant for damages, the largest part of which is an amount of $750,000, said to have been spent consequent upon representation that the amount was half what was needed to do development work in relation to the property. The case has some factual complexity. There will be a significant credit dispute between, at least, the evidence given by the plaintiff and the evidence given by the defendant
The plaintiff was represented by counsel and an instructing solicitor. The defendant appeared on her own behalf. She is a 74 year old woman. At the commencement of the trial I ruled that the defendant could have the assistance of her friend, Dr Von Moltke, by having him sit with her at the bar table, but not by his being permitted to appear on her behalf. Although Dr Von Moltke was not legally qualified, he had qualifications in science and business administration and was more conversant in the English language than was the defendant.
On 3 November 2015, the second day of the trial, the defendant became ill. Dr…

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 Zuecker v Bruggmann (No 2)

Details

AGLC: Zuecker v Bruggmann (No 2) [2016] QSC 115
Case: [2016] QSC 115
Decision Date: 30 May 2016

CaseChat Overview and Summary

In the matter of Zuecker v Bruggmann (No 2), the plaintiff, Zuecker, sought to recover costs incurred during the course of a civil trial against the defendant, Bruggmann. The dispute arose out of a five-day hearing that was scheduled, but was disrupted when Bruggmann, who was representing himself, fell ill on the second day. This led to the adjournment of the trial on the third, fourth and fifth days, with costs of the adjournment reserved. The case was heard by the Supreme Court of New South Wales.

The primary legal issue before the court was determining the appropriate costs order given the unusual circumstances of the trial adjournments. The court had to consider the general principle that costs follow the event, but also had to balance this with the specific circumstances of the case, including the defendant’s illness and the necessity of the adjournments. The court was required to decide whether the plaintiff should bear the costs of the adjourned days or if the defendant should be liable for those costs.

The court considered the principle that costs generally follow the event, meaning that the unsuccessful party in a litigation usually pays the costs of the successful party. However, the court recognised the exceptional nature of this case, where the defendant’s illness necessitated the adjournments. The court determined that it was appropriate to order the costs thrown away by the adjournments to be borne by the plaintiff, as the defendant’s illness was unforeseen and beyond his control. Additionally, the court held that the plaintiff’s costs of applying for the costs order should also be borne by the plaintiff.

Accordingly, the court made an order that the plaintiff’s costs thrown away by the adjournments on 3, 4 and 5 November 2015 be the plaintiff’s costs in the proceeding. Furthermore, the plaintiff’s costs of its application for a costs order in respect of those costs were also to be the plaintiff’s costs in the proceeding. This decision balanced the general rule of costs following the event with the specific circumstances of the case, ensuring a fair outcome for both parties.

Orders

Orders of the court

The orders of the Court are that:

(a) The plaintiff’s costs thrown away by the adjournments of the trial on 3, 4 and 5 November 2015 be the plaintiff’s costs in the proceeding.

(b) The plaintiff’s costs of its application for a costs order in respect of those costs be the plaintiff’s costs in the proceeding.

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:	Zuecker v Bruggmann (No 2) [2016] QSC 115
PARTIES:	NICOLETTA IRENE ZUECKER (plaintiff) v RUTH BRUGGMANN (defendant)
FILE NO/S:	SC No 8751 of 2012
DIVISION:	Trial Division
PROCEEDING:	Application for Costs
DELIVERED ON:	30 May 2016
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGE:	Bond J
ORDER:	The orders of the Court are that: (a) The plaintiff’s costs thrown away by the adjournments of the trial on 3, 4 and 5 November 2015 be the plaintiff’s costs in the proceeding. (b) The plaintiff’s costs of its application for a costs order in respect of those costs be the plaintiff’s costs in the proceeding.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – OTHER PARTICULAR CASES AND MATTERS – where trial listed for five day hearing – where self-represented defendant became ill on the second day of trial – where trial adjourned and costs of adjournment reserved – appropriate costs order in the circumstances Earp Woodcock Beveridge & Co Ltd v Gordon & Ors (1927) 44 WN(NSW) 123, cited Pell v Linnell (1868) LR 3 CP 441, cited Sandvik Mining and Construction Australia Pty Ltd v Dempsey Australia Pty Ltd & Ors [2012] QSC 102, cited State of Queensland v Brooks & McCabe [2006] QCA 523, considered Zuecker v Bruggmann [2016] QSC 53, cited
COUNSEL:	P W Hackett for the plaintiff R J Clutterbuck for the defendant
SOLICITORS:	Rose Litigation Lawyers for the plaintiff Turnbull Mylne for the defendant