Brose v Baluskas & Ors (No 4) [2019] QDC 120

DISTRICT COURT OF QUEENSLAND CITATION: Brose v Baluskas & Ors (No.4) [2019] QDC 120 PARTIES: TRACEY ANN BROSE (Plaintiff) v DONNA JOY BALUSKAS (First Defendant) and MIGUEL BALUSKAS (Second Defendant) and TRUDIE ARNOLD (Third Defendant) and IAN MARTIN (Fourth Defendant) and KERRI ERVIN (Fifth Defendant) and LAURA LAWSON (Sixth Defendant) and CHARMAINE PROUDLOCK (Seventh Defendant) FILE NO/S: D148 of 2016 DIVISION: Civil PROCEEDING: Application by the Plaintiff for Costs against the First and Second Defendants ORIGINATING COURT: District Court at Southport DELIVERED ON: 19 July 2019 DELIVERED AT: Southport HEARING DATE: On the papers JUDGE: Kent QC DCJ -- 1 of 3 -- 2 ORDER: 1. The plaintiff’s costs on the applications are fixed in the sum of $32,968.56. 2. The first defendant is responsible for 100% of these costs and the second defendant is responsible, jointly and severally, for 75% thereof. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – GENERAL PRINCPLES AND EXERCISE OF DISCRETION – where the plaintiff was successful and the second defendant was marginally successful in the original application – where the second defendant was seeking an indulgence – whether the second defendant should be responsible for 100% of the plaintiff’s costs. PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – REGULATED COSTS: GROSS OR FIXED COSTS, LUMP SUM ORDERS OR CAPPING ORDERS AND LIKE MATTERS – POWER TO ORDER – where the defendants have been on notice of the plaintiff’s requests for costs – where the trial is to be heard soon – whether the plaintiff’s costs should be fixed. LEGISLATION: Uniform Civil Procedure Rules 1999 (Qld), r 685. CASES: The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2009] 2 Qd R 356. COUNSEL: H Blattman for the applicant plaintiff B Goldsmith (Sol) for the first and second defendants SOLICITORS: Bennett & Philp Lawyers for the applicant plaintiff Goldsmiths Lawyers for the first and second defendants [1] I gave judgment on 21 June 2019 in relation to the defendants’ applications. A number of orders were made including an order that, subject to submissions, the first defendant should pay the plaintiff’s costs of the applications, and the second defendant should pay 75% of the plaintiff’s costs. When the judgment was delivered I made orders as to the filing and service of any written submissions the parties wished to make as to these orders. [2] The defendants did not make any submissions as to costs. The plaintiff’s submissions were filed on 4 July 2019. [3] The plaintiff submits that the defendants should each be responsible for all of the plaintiff’s costs in relation to the applications. She submits that the first defendant had only marginal success; the second defendant was in any case seeking an indulgence in relation to the further amended pleadings and in those circumstances the general rule is that the applicant should pay the other side’s costs; further an application by the second defendant would have been necessary whether or not the plaintiff opposed the granting of leave; and finally that the application took up -- 2 of 3 -- 3 considerable time of which only a small proportion related to the issues upon which the second defendant was successful. [4] The points made by the plaintiff are not without merit, however as expressed in the primary judgment, the second defendant did have some success – albeit minor and not on points that were specifically delineated during submissions – despite opposition by the plaintiff. In the exercise of my discretion, the orders should be as foreshadowed in the primary judgment. [5] Secondly, the plaintiff requests that the costs be fixed pursuant to the discretion outlined in r 685(2) of the Uniform Civil Procedure Rules (Qld) 1999, as described in Practice Direction No. 3 of 2007. [6] In respect of this issue, the plaintiff submits that the defendants have been on notice of the plaintiff’s requests, including during oral submissions on 24 May 2019. The defendants have not advanced any submissions on the topic. The plaintiff submits that this is an appropriate case to fix costs in view of the approaching trial and the desirability of resolving such issues in a timely way. The application is supported by proper material quantifying the costs on the standard basis at $32,968.56. [7] The plaintiff also submits that the fixing of the costs at this stage avoids the burden of taxation on the plaintiff, particularly where there are numerous references by the defendants to their impecunious position. [8] The plaintiff submits that an assessment by which costs are fixed does not require the same process as an ordinary assessment, rather a broad brush is applied.1 [9] The relevant costs statement has been prepared by an approved costs assessor and is exhibited to the affidavit material. [10] In the circumstances it is my decision that the plaintiff’s submissions on this topic should be accepted and thus the plaintiff’s costs on the applications are fixed in the sum of $32,968.56. The first defendant is responsible for 100% of these costs and the second defendant is responsible, jointly and severally, for 75% thereof. 1 The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2009] 2 Qd R 356 at [7] per Martin J. -- 3 of 3 --