Cross & Anor v Agnew & Ors [1991] QMW 96

··- ··-· ,. •· ' } IN THE WARDENS COURT OF QUEENSLAND HELD AT MAREEBA. BEFORE: WILLIAM SAMUEL CliRISl'ENSEN. ESQUIRE. WARDEN. IN THE MATTER OF: . ".:: .,... ~.. .. -~ . 171:, APPLICATION FOR COSTS IN RELATIO~ TO PLAINT 1/90 IN THE CAIRNS MINING DISTRICT. PLAINTII-1 I·"S; DEFENDANTS: .. DAT.€ OF HEARING; ORDER: PETER BRIAN GROSS AND GORDON JOHN ZAPCti_ JOHN BELL AGNEW, ROSLYN ANNE WORTHING, BOB AGNEW and SUZANNE MARGARET COONEY . 2nd December, 1991 Judgmen; was given in this matter on the 25th October, 1991 and the matter of costs set for- hearing in the Wardens Court at Cairns on the 2nd December. 19g1. [1991] QMW 96 -- 1 of 5 -- •- . I \ ) Mr. D. H. Hodgson appear-ed for the Plaintiffs and applied for an order that the Defendants Bob Agne~ and Suzanne Margaret Co,)ney pay the Plaintiffs' costs. The Pl-aintiffs are not seeking costs from the other two Defendants. Mr. W.Stubbs appeared on behalf of the Defendant Cooney and M/s. D. Harvey appeared as town agP.nt:· for Uneton James and on behalf of Bob Agne~ or Ro~lyn Anne Worthing. The matter ~as adjourned for decision in the Wardens Court at Mareeba. As tadlcated by me at Cairns, I do uot intend to make an Mrs. Mearns (nee Worthing) appeared and gave evidence for the Plaintiffs and Mr. Agnew Snr. was prevented from appearing .because of illness. Mrs. Mea~ns was a valuable witness for the Plaintiffs' case and her evid~nce played a significant part in judgment falling in favour of the Plaintiffs. Although n notice of defence was filed on behalf of A~new Snr. and Worthing it wa$ clear as the case proceeded that neither of those Defendants had any interest ln the outcome of the proceedings. Costs awarded by the Wardens Court ar~ in the discretion of the Warden. In th is case I intend to prcc'7.:ed alcn~1 the l inBs of Rule 319(1) of the Ma~istrates Court Rule~ l9•SiJ which in effect. requires that in default of any special dlrectlons costs should -- 2 of 5 -- I abide the event of proceedings. It has been argued on behalf of Cooney that the Plaintiffs, by their actions tn the whole affair, do not deserve an a~ard of costs. The Plaintiffs have suceeded in their main object: that . is. to obtain a declaration in respect cf· the benefici~! entitlement to the Mining Lease Applications marked out by them and Agnet-. I can see no rea!:.on why thay s!H,uld be deprived of costs because they had not bothered to acquire sufflclent knowledge about general procedures involved in applying foe· mlning leases and demonstrated lack of c,~re in some respects in lo<:>king after their own interests. The ca~e was all about their trust in Agnew's ablltty and honesty in dealing with their property and hinged on proving - which they h~ve ~ that Agnew breached that trust. Neither can it be Si;lid that the Pl~in.tiffs are not entitled to their costs as no 1:0111plaint or forewarnin~ was rec.elved by the Defendants until the plaint i,,as served ,;ome three years later. It seems from the record that there was ample time for the parties to get together and settle all matters in dispute before . the action came to trial. Indeed. it. seems abundantly clear that Worthing availed herself c.>f thar. opportunity and all matters in dispute between her and the Plaintiffs were resolved before the hearing. It has also beeen argued that Cooney should not be •; i:s i ted with an order for costs as the whole affair- c;~s initi;.;tt;.ed and continued by Agnew's duplicity. It has been foQnd that C~one~ closed her mind to the pos:::ibility of ..\gnc~i;;'s n,_:,t _t~l!ing the -- 3 of 5 -- ( \ 4 truth and that she acted wilfully or recklessly in failing to seek further information about the beneficial o~nershlp of the Mining Lease Applications. Th~ evidence points to a situation ~here, once the Plaintiffs claim was made known to Cooney. it should have been clear to her that all was not as Agnew would have had her believe. This ~as particularly so when the fir~t Wt" i t ten agreement came to 1 i gh t . Cooney had amp 1e t i me t t':> come to the realisation that she had little liklihcod of success and settle the questlun of beneficial entitl~meot to the sati~fd~tlon of the Plaintiffs. Instead, she came to court hQping for a result in her favour, and failed. In my view an order to pay the Plaintiffs' costs ~hauld he made against. both Agnew and Cooney. I agree with Mr. Hodgson that it is approprlut~ to have _ ,: regard to Scale F of the Fifth Schedu _le to the Magistrat.es Court. ~ •.• . (-- .. ·· :_·. Rules 1960. In doing so I take into account the uncertain value of the property involved and the complexlty of the case in relation to questions of law and fact. I assess the Plaintiffs' costs recoverable against the Defendants Bob Agnew and Suzanne Margaret Cooney as follows:- · Preparation for trial (item S(a)) Sl,i'0-5.0C -- 4 of 5 -- I . \ (.... ) \ Counsel's fee - 4 days (Items 6 (f) and (g)) Solicitor on hearing (Item 8(a)) 5 4 ~itnesses at $43.00 each $2,309.00 $1,236.00 1,2.00 S.'5,422.00 I order that the Defendants .Bob .\gnew and Suzanne ?<!an~arat Cooney pay the Plaintiffs' costs·of SS,422.00 forthwith. '. Mareeba, ... ·16~~ Decembei~ 1991. @)(Sgd.) w.s. Christensen. Warden. -- 5 of 5 --