Bingham v Merrin & Ors [2001] QSC 477

464:,\ , State Reporting Bureau L-18 \?-coiJ QSC.. 477 (-~ Queensland Government ..1).)1~ Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J Application No 119 of 2001 JOHN ERNEST BINGHAM, REGISTRAR, SUPREME COURT, CAIRNS and ANNETTE ELIZABETH MERRIN and THOMAS WILLIAM MERRIN and CAIRNS PORT AUTHORITY CAIRNS .. DATE 14/11/2001 JUDGMENT 1 r-R=' ·1:~z : ·. 2-2... II · :;;loo/ --~-·····--···~""~ Applicant Respondents 4Tl1 Floo1, Tl1e Laoo Cou1ts Coi11plex, Oeo1ge Otleet, Olisbaue Q. 48130. TeJepl1011e. (07) 8247 4!9el0. Facsin1ife. (El?) 9:247 5592 -- 1 of 5 -- 14112001 T3/LET M/T CNSl/2001 (Jones J) HIS HONOUR: This is an application by the Registrar seeking directions about the payment into Court of moneys offered by the defendant to the plaintiffs in satisfaction of the costs of a trial and an appeal, in which appeal they were successful. The Court of Appeal made an order that the costs of the trial and the appeal be paid to the plaintiffs. The assessment of 10 those costs was commenced before the taxing officer, but before they proceeded far an offer was made by the defendant, The Cairns Port Authority, in a particular sum. In the meantime, the solicitors previously on the record for the plaintiffs, Mr and Mrs Merrin, sought a declaration in' the District Court before his Honour Judge Noud that they had an equitable interest in the costs to be assessed. Presumably this was for costs and outlay incurred by them in the course of the trial, and prior to the termination of their retainer. His Honour Judge Noud, in accordance with a extract from the transcript, which is Exhibit D to the affidavit of John Ernest Bingham sworn on 13 November 2001, made the following order: "It is declared that the applicant (Royds) has an equitable right and interest in such costs to the extent that the applicant is lawfully entitled to be paid moneys by the respondents (Merrins) for the work done and outlays incurred by the applicant as the respondents' solicitor in respect of such trial." I have been informed that that order has not been perfected. The latest information being that the parties are awaiting release of the transcript from His Honour. 2 JUDGMENT 20 30 -- 2 of 5 -- 14112001 D.2 T4/LVT M/T CNSl/2001 (Jones J) Acting on the assumption that an order will be perfected in those terms, it is inevitable that Mr Royds and the plaintiffs have an interest in those costs. The fact that they cannot agree as to the break-up of those costs and the distribution of any costs received means that there will be further taxation of costs and, perhaps, further litigation in respect of that issue. In the meantime, however, the Cairns Port Authority wishes, if that amount is acceptable to both parties, to be relieved of any further obligations to attend on the assessment of the costs of the trial and the appeal. Mr Royds, who appeared before me, indicates that he, as a person with an equitable interest in the costs, would be prepared to give his consent to the acceptance of the costs offered by the Cairns Port Authority. Mr Merrin, who appears on behalf of himself and his wife, 10 seems to indicate that he is prepared to accept the amount of 20 those costs as being fair, but seeks to impose a condition on their acceptance, namely that the costs should be paid entirely to him prior to any accounting for other claimants upon those costs. That condition is not acceptable, obviously, to Mr Royds. The Registrar appears before the Court for directions and it is necessary for me to try to put an end to this impasse, at the same time as protecting the rights of Mr Royds to have whatever is due to him in accordance with the equitable interest, and the rights of Mr and Mrs Merrin to ensure that 3 JUDGMENT 30 -- 3 of 5 -- 14112001 D.2 T4/LVT M/T CNSl/2001 (Jones J) they are not overcharged for whatever work has been done by Mr Royds, and, at the same time, the rights of the Port Authority not to be exposed to further costs by undergoing a lengthy costs assessment which nobody really wants. In those circumstances it seems to me that if the moneys are paid into Court and the Port Authority further discharged from participating in costs assessment, then the real dispute, namely that between Mr Royds and Mr and Mrs Merrin, can be determined in accordance with the law and the rules of taxation. That is the direction that I propose to give. In the event that Mr Royds and Mr and Mrs Merrin cannot agree upon the proper distribution of those funds, it may well mean that there will have to be a further taxation of costs. But for the moment I believe that further attempts ought to be made to reach a resolution of the issues between Mr Royds and Mr Merrin, and without further involving Cairns Port Authority in what may be unnecessary expense. So, my orders will be that the moneys which the Cairns Port Authority tender in full satisfaction of its offer to pay costs, be paid into Court in a separate account in respect of this matter, namely 119 of 2001. HIS HONOUR: My order will be that the amount of the offer 10 20 made by Cairns Port Authority to settle trial costs, the sum 30 of $44,727 be paid into Court. 4 JUDGMENT -- 4 of 5 -- 14112001 D.2 T4/LVT M/T CNSl/2001 (Jones J) The taxation of the trial costs will be adjourned to a date to be fixed. HIS HONOUR: Payment by the Cairns Port Authority of the costs of appeal, namely $5,151.53, and the receipt of Mr and Mrs Merrin for that payment, will discharge the Cairns Port Authority in respect of that set of costs. 5 JUDGMENT 10 -- 5 of 5 --