Adelaide Bank Limited v Teni & Anor [2005] QSC 40

1 WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. [2005] QSC 040 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BYRNE J No 8722 of 2004 ADELAIDE BANK LIMITED (ACN 061 461 550) Plaintiff and TENISIO TENI and MARIA FERISITA TENI First Enforcement Debtor Second Enforcement Debtor BRISBANE ..DATE 11/02/2005 ORDER -- 1 of 5 -- 11022005 T13/MMV16 M/T 2/2005 (Byrne J) 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This application is by a mortgagee of real property: the mortgagee sought a default judgment for recovery of possession of land following the mortgagor's default. Rule 286 provides that where a claim is made for judgment in default for recovery of possession of land only, the plaintiff may file a request for judgment "and for the costs prescribed". That rule is contained in chapter 9, part 1 of the Uniform Civil Procedure Rules. By rule 695: "If a default judgment is given with costs under chapter 9, part 1, the registrar must set the costs in accordance with the prescribed scale." Schedule 1 contains the scale of costs applicable to proceedings in the Supreme Court. Under the heading "Prescribed Costs" in schedule 1 are four items. They include: "20: Costs on issuing a claim... (a) by an individual" - And then an amount is prescribed: "(b) Claim by an entity other than an individual" - Where a higher amount is prescribed, and: "21: Costs of obtaining judgment in default of appearance" - Where again a figure is prescribed. -- 2 of 5 -- 11022005 T13/MMV16 M/T 2/2005 (Byrne J) 3 ORDER 1 10 20 30 40 50 60 The plaintiff applied for default judgment. The Registrar allowed as the costs the costs mentioned in items 20 and 21. The applicant contends that the Registrar ought additionally to have allowed the amount contemplated by item 18. Under the heading "Disbursements", item 18 provides for: "Court fees and other fees and payments to the extent that they have been reasonably incurred and paid ..." Relevantly, item 18 relates to Court filing fees. The Registrar was correct in not including an item under 18, for the "prescribed costs" proceed upon the basis that item 20 includes a component for filing fees. The apparent intention of the items under "prescribed costs" is to specify the sums which will be allowed without the necessity to prepare a bill that complies with the form anticipated by the scale of costs, making claims for particular items such as drawing, engrossing, copying and service. Item 18, on the other hand, is one of several components of an ordinary bill to be prepared by reference to claims of a kind envisaged by items 1 to 19 in schedule 1. The result is in some respects odd. On this approach, more might be allowed under schedule 2 - which concerns District Court proceedings - in respect of judgments by default. That is because not only is there provision in Schedule 2 for the costs of judgment by default in an amount exceeding $600 in broadly comparable circumstances but also the Registrar may -- 3 of 5 -- 11022005 T13/MMV16 M/T 2/2005 (Byrne J) 4 ORDER 1 10 20 30 40 50 60 include other allowances and - see 88(c) - "All necessary out of pocket expenses." As it happens, those who have prescribed the costs to be awarded appear to have proceeded upon the assumption that item 20 includes the filing fee on the originating process. Progressive increases in the prescribed filing fees have mirrored increases in item 20. In 2002, the filing fees were altered to provide a new structure in respect of fees payable on the commencement of the kind of originating process which has resulted in the judgment with which I am concerned. Previously, the same filing fee - $220 - was payable whether the claim was by an individual or a corporation. In 2002, however, the new filing fees became, put shortly, for an individual $420; and otherwise $840. In 2001, the "prescribed costs" recoverable on a default judgment ($485) did not distinguish between an individual and a corporation. In 2002, the prescribed costs were increased as follows: for an individual $717; otherwise $1,137. There have since been other increases but it is sufficient to refer to the distinction between 2001 and 2002 to make the point. -- 4 of 5 -- 11022005 T13/MMV16 M/T 2/2005 (Byrne J) 5 ORDER 1 10 20 30 40 50 60 In 2001, when the filing fees were $220, $485 was allowed under item 20; that is to say the professional cost component amounted to $265. In the next year, when the filing fee for an individual was $420, $717 was the prescribed costs on issuing the claim by an individual. The difference is $297. In respect of a corporation, however, when the filing fee was $840, the amount allowed under item 20(b) for such a claim was $1,137. Again, this is a difference of $297. This comparison makes it plain that the "prescribed costs" were bifurcated to distinguish between a claim by an individual and a claim by an entity other than an individual because of the change to the filing fee structure. And the fact that the differential between the filing fee and the total amount allowed on the claim under item 20 is the same $297 demonstrates that those responsible for the calculation of the prescribed costs proceeded upon the basis that they were distinguishing between claims by individuals from those of others because of the new filing fees. Mr Mills, in his comprehensive submissions, has drawn attention to several of the curiosities which follow from the exclusion of an item 18 component in the costs assessment. One has already been mentioned. These difficulties, however, will need to be raised with the Rules Committee and ultimately with Government if they are to be redressed. ... ----- -- 5 of 5 --