Collins v Marinovich & Ors [2023] QSC 175

1. The application for review filed 25 November 2022 is allowed.
2. The decisions made by the costs assessor Mr Graham Robinson in the cost assessor's certificate of assessment issued by him on 4 October 2022 (Certificate) is set aside.
3. The costs assessment to be undertaken pursuant to the consent order of the registrar dated 3 May 2022 is remitted back to Mr Robinson to be conducted on:
   1. the basis:
      1. that the first and second respondents are jointly and severally liable for the applicant's costs of paragraph one of the originating application;
      2. of the reasons for judgment of Muir J dated 9 August 2023; and
   2. otherwise, the material which was before Mr Robinson when he made the decision contained in the Certificate.
4. The first respondents pay the applicant's costs of obtaining Mr Robinsons's reasons for the decision made by him in the Certificate.
5. The first respondents pay the applicant's costs of the application filed 25 November 2022.

[2] The trial was heard on 15 and 16 March 2021 and judgment was delivered on 14 June 2021: See Collins v Marinovich & Ors [2021] QSC 141. All parties were legally represented at the trial.

[3] A statement of claim was filed on 12 July 2019; A defence and counterclaim was filed by the respondents on 9 August 2019 - at that time both respondents were commonly represented. A counterclaim was advanced that the applicant and the deceased had entered into a further agreement varying the agreement secured by the mortgage. Subsequently the first respondents applied (unsuccessfully) to be removed as a party to the proceeding: Collins v Marinovich & Ors [2020] QSC 250.

[4] The costs judgment was delivered on 27 July 2021: Collins v Marinovich & Ors [2021] QSC 175. All parties were legally represented in the costs argument. The costs order made was formally taken out on 5 August 2021: Court File index 56.

[5] It is also not in dispute that an amended application was filed on 12 July 2019 [Court File index 8] in

which the applicant maintained her claim for the declaration but the machinery orders sought in the originating application were deleted and replaced with orders with similar effect except that an order was sought that the registrar of the Court sign any discharge if the respondents failed to do so.

[6] On 17 December 2020 the first respondents filed an amended defence essentially abandoning any positive case against the relief sought by the applicant stating that they would abide the order of the court save as to costs. They also abandoned their counterclaim.

[7] Bombala Farmers Flour Mills Co v Victoria Insurance (1887) 8 LR (NSW) L 85; Donohoe v Britz (No 2) [1904] HCA 25; (1904) 1 CLR 662 at 667.

[8] Schweppes Ltd v Archer [1934] NSWStRp 17; (1934) 34 SR (NSW) 178, 183-184. These observations were approved by

the High Court in Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621,628, per Kitto J. This passage was also cited with approval by the Queensland Court of Appeal in Farrar v Julian-Armitage [2015] QCA 289 at [15] per Henry J, (Morrison JA and McMurdo P agreeing).

[9] This passage was also cited with approval in Farrar v Julian-Armitage [2015] QCA 289 at [15]

[10] Nashvying Pty Ltd v Giacomi [2009] QSC 31 at [4] per Jones J.

[11] Re MacDonnell Henchman & Hannam [1910] St R Qd 324 at 332 per Cooper CJ.

[12] Wiesac Pty Ltd v Insurance Australia Ltd (No 3) (2021) 7 QR 642; [2021] QSC 69 at [48], per

[16] Court File Index 62. A copy of the reasons are also found at pages 577 to 605 of the Court Book.

[17] See paragraphs [9] to [11] of the Reasons at Court Book pages 578-579.

[18] T1-4 lines 25 to 47; T1-6 line 23; T 1-32 lines 37 to 46. Outline of argument of the first respondents at paragraph 24 to 30.

[19] In doing so she conceded that she was resiling from the position she articulated to Mr

Robinson as set out in paragraph 15 and 18 of these Reasons.

[20] T 1-48 lines 37 to 48, T1-49 lines 1 to 6.

[21] Repatriation Commission v Nation [1995] FCA 1277; (1995) 57 FCR 25, 33-4 (Beaumont J, Jenkinson J and Black

[22] Sertari Pty Ltd v Quakers Hill SPV Pty Ltd [2014] NSWCA 340 at [81] (Tobias AJA, McColl

and Barrett JJA agreeing); Jason Hall t/as JHL Lawyers v Val Eco Homes Pty Ltd (in liq) [2021] QCA 236 at [27] (Fraser JA).

[23] Laming v Jennings [2018] VSCA 335 at [123].

[24] See Glenwood Homes Pty Ltd v Eberhard [2008] QSC 192; [2009] 1 Qd R 127; [2008] WSC 127 at [8] per Dutney J,

referring to Probiotec Ltd v University of Melbourne [2008] FCAFC 5; see also City of Swan v Lehman Brothers Australia Ltd (No 3) [2009] FCA 1190 at [14] per Rares J; Royal v El Ali (No 3) [2016] FCA 1573 at [53]- [55] per Davies J. See also the discussion by Applegarth J in Bert & Ors v Red 5 Limited & Anor [2017] QSC 8 at [11] with reference to Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) [1979] 42 FLR 213 at 224. See also discussion in Dal Pont, GE Law of Costs 5th ed Lexis Nexis, Australia 2021 at 11.2.

[25] Probiotec Ltd v University of Melbourne [2008] FCAFC 5 at [54].

[26] An example of the sort of wording which might achieve that was identified in City of Swan v Lehman

Bros Australia (No 3) [2009] FCA 1190 at [14] per Rares J.

[27] Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) [1979] 42 FLR 213 at 224.

[28] Dal Pont GE, Law of Costs, 5th edition; LexisNexis Australia, 2021 at 11.2 (footnote omitted).

[29] Bitzer Australia Pty Ltd v Japp [2014] FCA 1040.

[30] For example, see BHP Coal Pty Ltd v O & K Orenstein & Koppel AG and Ors (No 2) [2009] QSC 64

[31] Whilst a direction to this effect is arguably outside the purview of this review, I consider that it would be sensible and prudent if (as soon as practicable) the applicant prepared and delivered a costs statement to the second respondent itemising the balance of the costs of the proceeding she wishes to claim against her (pursuant to the costs order).

[32] Costs judgment at [20] to [22].