Bellino v Doherty & Anor [2020] QDC 278

DISTRICT COURT OF QUEENSLAND CITATION: Bellino v Doherty & Anor [2020] QDC 278 PARTIES: DENSYL FLORENCE BELLINO (plaintiff) v RACHAEL COLLEEN DOHERTY (first defendant) and DENSYL SANDSTONE PTY LTD ACN 099 866 761 (second defendant) FILE NO/S: 3255 of 2018 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 1 October 2020, ex tempore DELIVERED AT: Brisbane HEARING DATE: 1 October 2020 JUDGE: Rackemann DCJ ORDER: The defendants are to pay the plaintiff’s costs of and incidental to the application, to be assessed on the standard basis. The application is otherwise dismissed. CATCHWORDS: COSTS – APPLICATION FOR COSTS – where an application by the plaintiff for disclosure was dismissed because the defendants had, subsequently to the filing of the application, made disclosure – where the plaintiff seeks an order that the defendants pay the costs of the application – where the defendants contend that costs should be reserved or that any costs order in favour of the plaintiff should be limited to the date by which the disclosure obligation was performed – where the plaintiff did not act unreasonably in bringing the application – whether the plaintiff should be awarded the costs of and incidental to the application and, if so, on what basis LEGISLATION: Uniform Civil Procedure Rules 1999 (Qld) r 444 COUNSEL: J Nott (sol) for the plaintiff -- 1 of 4 -- 2 S Trewavas for the defendants SOLICITORS: Jason Nott Solicitors for the plaintiff Aitken Whyte Lawyers for the defendants [1] This is an application brought by the plaintiff, seeking orders requiring the first and second defendants to make disclosure, and also seeking its costs of the application. The application for the substantive relief will be dismissed, but only because the defendants have now performed their duty of disclosure. Since the application is being dismissed on that basis, the plaintiff contends that the defendants ought pay the costs of the application, which was brought because of the defendants’ failure to perform in a timely way. [2] The defendants contend that costs should be reserved, although counsel for the defendants ultimately fairly conceded that that is a somewhat difficult position to defend, and submitted that, in the alternative, any costs order in favour of the plaintiff should be limited to the date by which the disclosure obligation was performed. He submitted that the parties each acted somewhat unreasonably after that, in failing to come to an agreement for an order to be made on the papers, rather than necessitating an appearance before the Court. [3] The history of the matter is set out in a rather bulky affidavit of Mr Thompson and in the affidavit of Mr Nott. It is unnecessary to repeat the entire detail, but it is necessary to point out some of the more salient features. The plaintiff has been seeking disclosure over a very long period of time. The first rule 444 letter was sent by the plaintiff’s then solicitors, on the 3rd of December 2018. That was responded to by the defendant’s solicitors, who contended that their clients ought not be required to perform the duty of disclosure until the resolution of an issue which they had raised about the position of the plaintiff’s solicitor, who they said had a conflict in continuing to act. That issue was resolved, by the latest, on the 19th of March 2019, when a notice of change of solicitor was filed for the plaintiff. Notwithstanding the resolution of that issue, the defendants continued to fail to perform the duty of disclosure. [4] Later in that year, the matter fell into a situation where there had been a failure to take a step for more than 12 months. A notice of intention to take a step was given by the -- 2 of 4 -- 3 plaintiff’s solicitors on the 17th of June of this year. On the 3rd of September, the defendants not having performed their obligation of disclosure, the plaintiff’s new solicitors wrote a further rule 444 letter, calling on the defendants to perform their duty of disclosure. [5] This provoked a response on the 8th of September, whereby the solicitors for the defendant said that they require a further short period of time in order to finalise their client’s list of documents, that they anticipate delivering the list of documents, or copies of documents, within 14 days, and asserted that the plaintiff ought to withhold from filing any application for that period of 14 days, and reserved the right to draw the Court’s attention to the correspondence in the event that an application was brought within the 14 day period referred to in their correspondence. [6] The list of documents was not, however, provided within 14 days, as foreshadowed in the letter, and so the plaintiff made its application. The defendants complain that the plaintiff did not further forbear. In that regard, the defendants’ solicitor had, by email, on the 22nd of September, asserted that a further short period was required to finalise the list of documents and asserted that the list of documents was anticipated by the 30th of September 2020. [7] No reason was provided for the failure to have a list done within the time period that had been stipulated in their letter. No indication was given of how well advanced the preparation of a list was. Nor was there any basis given for the anticipation that the list would be provided by the 30th of September. [8] It seems to me that, set against the history of the lengthy period over which the defendants had failed to perform the obligation of disclosure, and the forbearance which the plaintiff had shown in not bringing an application within the period which the defendants had nominated in their previous correspondence, it was not unreasonable for the plaintiff to proceed to make an application to the Court, rather than accede to yet another request for yet further forbearance, particularly in the circumstances where the request was in such bald terms. [9] The fact that the list of documents was subsequently provided by the 30th of September, does not make it unreasonable for the plaintiff to have rejected the further extension of time sought and to have proceeded to make the application when she did. It might be noted that, in response to the application, the defendants initially proposed -- 3 of 4 -- 4 a consent order which would have provided them with yet more time to provide their list of documents. [10] Counsel for the defendants said that the Court’s time ought not be taken up with arguments purely about costs, and I have sympathy for that view, that such matters should, so far as they can, be worked out between the parties. The parties in this case did, indeed, seek to reach some resolution which would have allowed an order to be made on the papers, each of them postulating various orders. Counsel for the defendant criticised the plaintiff for seeking an order which would have quantified its costs in an amount which he considered to be excessive. It must be said, however, that at no time did his clients put forward any proposal or indicate a willingness to agree to any proposal which would have involved an order that they pay the plaintiff’s costs, whether to be assessed or quantified in a lesser amount. [11] In the circumstances, I do not consider that the plaintiff acted unreasonably in bringing the application. I consider that it ought have its costs of the application. I do not consider that those costs should be limited simply to the period up until the disclosure obligation was performed. [12] I therefore make an order that the defendants pay the plaintiff’s costs of and incidental to the application, to be assessed on the standard basis. The application is otherwise dismissed. -- 4 of 4 --