De Whalley Farrall v Money (No 3) [2019] QDC 7

DISTRICT COURT OF QUEENSLAND CITATION: De Whalley Farrall v Money (No. 3) [2019] QDC 7 PARTIES: MICHAEL DE WHALLEY FARRALL (plaintiff) v DEBORAH MONEY (defendant) FILE NO/S: D92/2012 DIVISION: District Court PROCEEDING: Application ORIGINATING COURT: District Court at Southport DELIVERED ON: 8 February 2019 DELIVERED AT: Southport HEARING DATE: 14 December 2018 JUDGE: Kent QC DCJ ORDER: 1. The Plaintiff to pay the Defendant’s costs of the appearances on the 17th October 2017 and the 29th January 2018, in addition to the previous orders in the Defendant’s favour; 2. The Defendant otherwise to pay the Plaintiff’s costs of the proceeding. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – DEPRIVING SUCESSFUL PARTY OF COSTS – POWERS OF COURT AND RELEVANT CONSIDERATIONS IN EXERCISE OF DISCRETION – where the plaintiff was wholly successful in primary judgement – where the defendant seeks a costs order in their favour – where the plaintiff contends costs should follow the event on the standard basis – where the plaintiff caused significant, unreasonable delay and unnecessary costs to the defendant – where the defendant already had one costs order in their favour – whether costs should follow the event. Civil Proceedings Act 2011 (Qld) s 15 Uniform Civil Procedure Rules 1999 (Qld) s 5, s 678, s 680, s 681, s 686(a), s 702(1) and Ch 17A -- 1 of 6 -- 2 Alborn v Stephens [2010] QCA 58, considered. De Whalley Farrall v Money (No. 2) [2018] QDC 159, considered. Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 3) [2003] 1 Qd R 26, applied. Mio Art Pty Ltd v Macequest Pty Ltd & Ors No. 2 [2013] QSC 271, applied. COUNSEL: S L Kissick for the plaintiff A P Collins for the defendant SOLICITORS: Browns Lawyers for the plaintiff Craig Ray & Associates for the defendant Introduction [1] Judgment was given in this matter on 13 April 2017, declaring the interests of the parties in the relevant property, and further in August 2018 as to a charge on the defendant’s interest in favour of the plaintiff. The parties were unable to agree on the issue of costs, and written submissions were filed and oral argument heard on 14 December 2018. [2] The defendant submits that despite the plaintiff’s success on liability and the nature and amount of the charge, costs should not follow the event in the normal presumptive way. In essence, the submission is that firstly, the plaintiff only succeeded on a narrow aspect of the pleaded causes of action. Secondly, the matter, which has a long history, has been characterised by delay on the part of the plaintiff and it has often been necessary for the defendant, through her representatives, to force the tardy or unwilling plaintiff to progress the action, which has exposed the defendant to unnecessary costs. Thirdly, this is particularly so after the last adjournment of the matter, particularly after 30 August 2017 when, despite a judgment in his favour and a request for evidence/submissions as to the quantum of a possible charge, the plaintiff was particularly tardy. [3] The defendant also points to the plaintiff’s implied undertaking imposed pursuant to r 5 of the Uniform Civil Procedure Rules 1999 to prosecute his claim promptly. -- 2 of 6 -- 3 [4] Conversely, the plaintiff’s counsel simply argues that costs should follow the event on the standard basis. Legislative Context [5] The power to order costs in this court is conferred by s 15 of the Civil Proceedings Act 2011 (Qld) as follows: “A court may award costs in all proceedings unless otherwise provided.”1 [6] UCPR 680 and 681 are relevant: “680 Entitlement to recover costs A party to a proceeding can not recover any costs of the proceeding from another party other than under these rules or an order of the court. 681 General rule about costs (1) Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise. (2) Subrule (1) applies unless these rules provide otherwise.” [7] UCPR 686(a) provides that costs may be assessed without an order for assessment having been made if the court orders a party to pay another party’s costs. Thus it is not necessary to seek an order that costs be assessed.2 [8] Further, UCPR 702(1) expressly provides that “[u]nless these rules or an order of the court provides otherwise, a cost assessor must assess costs on the standard basis”. Again it is unnecessary to expressly order that costs be assessed on the standard basis.3 [9] UCPR 678 applies Ch 17A to costs payable under an Act, these rules or an order of the court. UCPR 679 provides the following relevant definitions for Ch 17A: “assessed costs means costs and disbursements assessed under this chapter … costs of the proceeding mean costs of all the issues in the proceeding and includes— (a) costs ordered to be costs of the proceeding; and (b) costs of complying with the necessary steps before starting the proceeding; and (c) costs incurred before or after the start of the proceeding for successful or unsuccessful negotiations for settlement of the dispute.” 1 The definition in s 5 of this Act includes the District Court. 2 See the discussion in Mio Art Pty Ltd v Macequest Pty Ltd & Ors No. 2 [2013] QSC 271 at [11] per Jackson J. 3 Ibid at [12] -- 3 of 6 -- 4 Thus the reference, previously frequently used, to costs “of and incidental to” a proceeding, is otiose4. History of the matter [10] The proceedings in this court were issued in 2012. There was then an order made by Newton DCJ for a stay of the proceedings because of concurrent proceedings on foot in another jurisdiction. His Honour awarded costs to Ms Money on that occasion. The order for a stay was taken on appeal by the plaintiff, unsuccessfully. Eventually the matter returned to this court in July 2015 and was reactivated without objection by the defendant. [11] Thereupon there were numerous delays at the hands of the plaintiff, and the defendant, who wished to have the matter resolved, had to constantly pursue the plaintiff including making court applications, to do so. By 22 July 2016, the defendant successfully applied for an order dispensing with the plaintiff’s signature on the request for trial date. [12] I heard the matter in October and December 2016, during which proceeding the plaintiff did not adduce specific or expert evidence in relation to the possible quantum of any possible charge. [13] Judgment was delivered on 13 April 2017, however further information was required in relation to the quantum of any charge to be imposed on a party’s interest in favour of the other party, to reflect imbalance in contributions. Thereafter the defendant filed an affidavit in relation to this question on 30 August 2017. On 12 September my Associate contacted the parties as to any further submissions. The plaintiff did not respond and disobeyed further directions. By 29 November 2017, the defendant expended funds on counsel drafting submissions, in the absence of further material by the plaintiff. On 15 December 2017, further directions were required; the defendant has been awarded the costs of that day. On 29 January 2018, the plaintiff finally filed further material including the affidavit of the forensic accountant, Mr Otto. There was an appearance on that day, in respect of which costs were reserved. There was then a further hearing in relation to this question on 13 March 2018. Further written submissions were later made. Judgment was to be delivered on 29 June 2018, however was further delayed at the request (on this occasion) of the 4 Ibid at [5] to [8] -- 4 of 6 -- 5 defendant. Judgment was finally delivered on the question of the charge, which was resolved in favour of the plaintiff, on 10 August 20185. This included an acceptance of Mr Otto’s evidence. [14] Thereafter the parties were unable to agree on costs. Written submissions were filed and the hearing was conducted on 14 December 2018. Consideration [15] In my view, the plaintiff was wholly successful on the trial of the primary question in the action. The pleadings of alternative causes of action did not involve consideration of separate bodies of evidence and the broad subject matter of the case did not change. The question was the equitable interests the parties had in the subject property given the background of their relationship and contributions. Ultimately I found that there was an executory trust in place and the deed which created this had not been repudiated by the plaintiff. It had, however, been wrongly repudiated by the defendant. However, my findings in relation to the issue of a constructive trust, dealt with generally at paragraphs [58] to [63] of the primary judgment, did not involve any rejection of the plaintiff’s case or findings inconsistent with the favourable findings on the cause of action which I found to be sustained. It was not a case where separate issues were pleaded which were required to be litigated separately in a factual sense, leading to doubling up of legal costs. It is also true to say that the plaintiff has been largely successful, including on the issue of the quantum of the charge. [16] UCPR 681 provides that costs of an application in a proceeding are in the discretion of the court, but follow the event, unless the court orders otherwise. The authorities establish that “the event” is not determined merely by reference to the overall result or outcome, but is to be determined by reference to “the events or issues, if more than one, arising in the proceedings”.6 Relevantly, Muir JA observed in Alborn v Stephens [2010] QCA 58 at [8] that: “…a party which has not been entirely successful is not inevitably, or even, perhaps, normally deprived of some of its costs”. 5 De Whalley Farrall v Money (No. 2) [2018] QDC 159 6 Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 3) [2003] 1 Qd R 26 at 60. -- 5 of 6 -- 6 [17] In all the circumstances, therefore, the relevant factors bearing on the exercise of the discretion include the plaintiff’s dilatory conduct at all phases of the trial, but particularly since delivery of the primary judgment; balanced by his success on the major issues in the litigation. Some of the latter delays since August 2017 are unexplained and quite inexcusable. They have caused ongoing costs for the defendant which were simply not necessary. They were in breach of the obligation imposed by r 5 of the Uniform Civil Procedure Rules. However, at the end of the day this must be balanced against the plaintiff’s success on the essential merits of the claim. Further, some of this misconduct has already been recognised by earlier costs orders in the defendant’s favour. [18] The defendant already has an order in her favour for the costs of the 15th December 2017 appearance (as well as earlier orders in 2012 and 2016 which are not necessary to enumerate). She should receive a similar order for the costs of the appearances of the 17th October 2017 and the 29th January 2018, which were previously reserved. Both of those appearances, and the defendant’s expenditure of costs in relation thereto, were caused by the plaintiff’s delay. However otherwise, the plaintiff’s overall success in the action entitles him to costs. For clarity, this includes the hearing as to the quantum of the charge on 13 March 2018, including Mr Otto’s report and appearance; and of the hearing as to costs. [19] In all the circumstances, there will be an order for the costs of the action, including the argument as to costs, to be paid by the defendant in favour of the plaintiff, apart from the occasions set out above. -- 6 of 6 --