McClymont v Nelson [2025] QSC 332

1. The Plaintiffs pay the Defendants' costs of and incidental to the Withdrawn Claims on the standard basis."

• [5] On 23 March 2023, North J entered summary judgment for the respondents in the proceeding against the applicants pursuant to r 293.
• [6] On 5 April 2023 orders were made by consent that the applicants pay the respondents' costs of and incidental to the proceedings on the standard basis as assessed or agreed.
• [7] On 11 April 2024 the respondent's solicitor served a costs statement on the applicants in accordance with r 705.
• [8] Rule 705 prescribes that a party entitled to be paid costs must serve a costs statement in the approved form on the party liable to pay the costs. Rule 705(2) also mandates particular matters required to be set out in the Costs Statement. There is no dispute that the costs statement served by the Respondents was served under, and in accordance with, r 705.
• [9] Relevantly, r 710 permits a party who has served a costs statement under r 705 to, not less than 21 days after service of the costs statement, apply for a Costs Assessment provide the requirements of r 710(2) are met. Pursuant to r 710(3), the application if made, is returnable before a Registrar.
• [10] On 2 May 2024 the applicants served the First Notice purportedly in accordance with r 706.
• [11] On 29 October 2025, the respondents served a document entitled 'Response to Notice of Objections'. The respondents assert that the First Notice was not a notice of objection served under r 706.
• [12] Rule 371(1) provides that a failure to comply with the UCPR is an irregularity and, relevantly, does not render a document a nullity. However pursuant to r 371(2)(c) and (d), where there has been a failure to comply with the UCPR, the court may declare a document to be 'ineffectual', or 'effectual', as the case may be.
• [13] This application was filed on 30 October 2025. Following service of the application, on 12 November 2025, the Applicants served the Second Notice.[1]

• [14] Rule 371 falls within Chap 10, Pt 2 of the UCPR. Rule 443(c) provides that Chap 11 Pt 8 of the UCPR applies to an application made (relevantly) under Chap 10 Pt 2.
• [15] Rule 444 requires that before making an application under r 443, the applicant for relief must write to the respondent specifying certain matters including the nature of the complaint, the facts to be relied on, the relief to be claimed, why the applicant should have that relief and a nominated time being at least three business days after the date of the letter within which the respondent must reply.
• [16] The respondents did not comply with r 444.
• [17] In Meredith v Palcam [2000] QCA 113; [2001] 1 Qd R 645, the Court of Appeal, referring to r 444, at [8] said:

"Although the court has the discretion to hear an application which does not comply with these requirements, good reason would have to be shown if it were to do so. This is because the requirements of Rule 444 serve the very useful purpose of alerting the respondent to the applicant's complaints giving the respondent the opportunity to respond or remedy the problem. This often obviates the need for the applicant to bring an application in court which serves the purpose of the UCPR set out in Rule 5(1) to "facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense".

• [18] In their written submissions[2], the applicants refer to r 448(1) which says the court may hear an application that does not comply with this part if the court directs and the fact that respondents do not seek such a direction in their application.
• [19] The applicants also submitted:

"The court cannot proceed to hear the application or receive the affidavit evidence unless it makes directions under Rule 448. The applicants consent to such directions.

Had the respondents complied with Rule 444, the applicants could have provided their amended notice of objection before the application was filed."

• [20] Despite this submission, the application was fully argued.
• [21] The applicants took an additional procedural point based on the form of the draft order sought by the respondents rather than the substantive relief sought in the application. The draft order did not refer to r 371. About this, the respondents submitted[3]:

"However, under rule 371(1), even if there has been failure to comply with Rule 706, that does not render the document a nullity and the court may equally declare the document to be effectual. If the respondents seek to amend their application to come under rule 371 the applicants will seek a declaration that the notice of objections, alternatively the amended notice of objections, is effectual."

• [22] Before me, counsel for the applicants also submitted whilst maintaining the applicants' primary position that the First Notice met the requirements of r 706, also made an oral instanter application under r 371(2)(d) for a declaration to the effect that the First Notice, or alternatively the Second Notice was effectual for the purposes of r 706.
• [23] In reality, both parties seek an indulgence from the court; the respondents due to their failure to comply with r 444, and the applicants because, as is implicit in their later written submission[4] that the "[First] notice substantially complies with Rule 706...", they failed to comply strictly with the mandated requirements of r 706 and therefore seek declaratory relief for their benefit.

Rule 708

• [24] Rule 708 describes what is to occur where a party fails to serve a notice of objection under r 706 and where, as a consequence, the party who served the costs statement files an application is r 710.
• [25] Rule 708 provides:

"708 Default assessment if no objection to costs statement

(a) a party served with a costs statement does not serve a notice of objection under rule 706; and

(b) the party who served the costs statement files an application for a costs assessment under rule 710.

(2) On the filing of the application, the registrar must appoint a costs assessor to assess costs under this rule.

(3) The costs assessor must, on proof that the costs statement was served on the party liable for the costs -

(a) assess the costs without considering each item and by allowing the costs claimed in the costs statement; and

(b) issue a certificate of assessment.

(a) despite subrule (3)(a), the costs of attending the assessment of costs are not allowable; and

(b) subrule (3)(a) does not prevent the costs assessor correcting an obvious error in the costs statement.

(5) Rules 711, 712 and 721 do not apply to an assessment of costs under this rule."

• [26] The consequences for failing to serve a notice of objection under r 706 could be significant.
• [27] Further, neither party addressed me as to why this application was not made returnable, at least originally, before the Registrar as contemplated by r 710. Perhaps given the factual contest, both parties determined that it was appropriate to list the application before me. In any event it is of no moment.
• [28] Rule 710 operates either by directing the costs assessor to proceed under r 708 by way of a default assessment, or as contemplated in by way of r 712 or r 713 depending on whether the appointed of a particular costs assessor has been agreed.
• [29] Here the respondents propose the appointment of Mr Jeffrey Peterson as the costs assessor and the applicants consent[5] to the appointment of Mr Peterson.

(1) A party on whom a costs statement is served may, within 21 days after being served, object to any item in the statement by serving a notice of objection on the party serving the statement.

(a) number each objection; and

(b) give the number of each item in the costs statement to which the party objects; and

(c) for each objection - concisely state the reasons for the objection identifying any issue of law or fact the objector contends a costs assessor should consider in order to make a decision in favour of the objector.

(3) The reasons for objection may be in abbreviated note form but must be understandable without further explanation.

(4) If the same objection applies to consecutive or nearly consecutive items in a costs statement, the notice need not separately state the reasons for objecting to each of the items.

(5) Also, if there are a number of associated items, the objection may be in the form of an objection to a common issue related to the associated items."

• [31] The respondents rely on two bases to assert that the First Notice was not served under r 706. The first is that the First Objection did not meet the requirements of the approved form.

• [32] There is an obvious difference between r 705 and r 706 in that r 705 requires that a costs statement must be "in the approved form" whereas r 706 does not mandate the use of any approved form. That is so despite the fact that the Rules Committee has approved a form for a Notice of Objection under r 706. That form is Form 61.
• [33] The respondents submitted that by virtue of the fact that Form 61 is an approved form under the Supreme Court of Queensland Act 1991 (the Act), the failure of the applicants to use Form 61 in preparing the First Notice rendered it ineffectual as a notice of objection under r 706.
• [34] Part 10 of the Act gives power to the Governor in Council to make Rules of Court for, relevantly, the practices and procedures of the Supreme Court. Section 85(2) provides that a rule may only be made with the consent of the Rules Committee being a committee which the Chief Justice is to establish pursuant to s 89. Section 87 provides that the Rules Committee may approve forms for use under the Act.
• [35] The respondents submitted that once a form is approved, it "must" be used where the UCPR requires that form. There is no rule to that effect in the UCPR. The respondents also referred to r 975 in support of their contention that the failure by the applicants to use Form 61 for that reason alone rendered the First Notice one that did not meet the requirements of r 706.
• [36] Rule 975 provides that "the approved forms must be used for the purposes for which they are applicable with the necessary changes circumstances may require." That rule does not provide any support for the submission made by the respondents.
• [37] Finally, the respondents also referred to section 48A of the Acts Interpretation Act 1954 as lending support to its submission that the applicants were obliged to use Form 61.
• [38] Relevantly, s 48A(1) is to the effect that if a form is prescribed or approved under another piece of legislation, it is not necessary to strictly comply with that form, rather substantial compliance with the form is sufficient. Further, s 48A(2)(b) says "If a form prescribed or approved under an Act requires...specified information or documents to be included in...the form...the form is not properly completed unless the requirement is complied with.".
• [39] The respondents submit[6] that the approved Form 61 require the form to be completed in a specified way and that fact together with the fact that r 706 mandates that certain things must be included in a notice served under r 706, mean that because the First Notice was not prepared using Form 61, it was not completed as specified in s 48A.
• [40] I do not accept this submission. It overlooks the fact that r 706 does not mandate the use of Form 61.
• [41] Plainly (and in any event), even if r 706 mandated the use of Form 61, notwithstanding r 371, substantial compliance with the form would have been all that was required. Section 48A(2) merely provides guidance as to whether there has been complete compliance with any particular form, or whether an assessment need be made as to whether there has been substantial compliance.
• [42] Why it might be that where a form has been approved for the purposes of the UCPR, a party, particularly one who is represented would choose not to use that form is a mystery and indeed would seem to be fraught with risk. However, that is what the respondents chose to do in this case.
• [43] Further, because it has been argued by the respondents, it is necessary to consider whether the applicants substantially complied with Form 61.

Did the First Notice substantially comply with Form 61?

• [44] In their written outline[7], the respondents made three specific complaints about the form of the First Notice which they say render it sufficiently different from Form 61 so as to render it ineffectual under UCPR 371(2)(c). Those complaints are:
  1. the absence of a column headed 'Objection No.' which provides for the number of each of objection as required by r 706;
  2. the absence of a line that provides for the 'Total of costs statement'; and
  3. the absence of a line that provides for the balance owing once the total of the proposed reductions is subtracted from the total of the costs statement.
• [45] If ever there was an example of a complaints being ones of 'form over substance', these would be it par excellence. I do not intend to deal with these complaints.
• [46] The applicants must be taken to accept that the First Notice did not strictly comply with Form 61 because on 12 November 2025 they served the Second Notice on the respondents.
• [47] Curiously, the Second Notice seems to have been served on the respondents twice, first under cover of a letter dated 11 November 2025 and again the following day. In the first letter the respondents' solicitor said "[a]s to the format of the Notice of Objection, whilst we do not consider that this would be an impediment to the determination of the costs by the appointed Costs Assessor, we attach an amended document in the Form 61 format, to avoid any further delay in the finalisation of the assessment."
• [48] In the second letter, the solicitor for the respondents said "the attached notice of objection has been amended in line with your objection to the format and we confirm that there are no other changes."
• [49] For reasons I will explain shortly, that last statement was not entirely correct. However for present purposes it does not matter. Even if the use of Form 61, was mandated, which it was not, the First Notice substantially complied with Form 61. That was all that would have been required.
• [50] It follows that the respondents do not succeed on this point.

• [51] As observed, r 706(2) prescribes three items which must be included in a notice of objection.
• [52] There has been limited judicial consideration of r 706, probably because most parties use Form 61. In Otto v Redhead & Ors [2011] QSC 252 (ex tempore), Atkinson J was required to consider a notice of objection in the context of a matter her Honour said had "detained [the parties] in this poisonous dispute for so long".
• [53] About the notice of objection, and after referring to r 706, her Honour said (at 1-10):

"The notice of objection does not comply with those mandatory requirements. The notice of objection is not in a form which can be considered by a costs assessor, and since it is not in accordance with rule 706 is not, in fact, a valid notice of objection. Accordingly, it cannot and should not be considered by the costs assessor who will have before him a costs statement which he should consider."

• [54] Her Honour did not identify the particular reasons why the notice of objection did not comply with the rule.
• [55] In Innes v The Electoral Commission of Queensland & Ors [2022] QSC 122, Bradley J explained the process contemplated by the UCPR in this manner:

"[76] The process prescribed by r 705 and r 706 may be understood in the context of r 708, r 709(2)(b), r 722, 737A and r 742(5)(b). For the process to have utility, an objector must comply with r 706, in particular (2) to (5). A notice of objection is how items in a costs statement are identified as requiring a degree of scrutiny and how the matters to be resolved in the assessment of those identified items are delimited. For all items not the subject of a notice of objection, the assessor must "assess the costs without considering each item and by allowing the costs claimed in the costs statement", subject to "correcting an obvious error in the costs statement." It has been the position, since long before the UCPR, that objections should be carefully framed because it is to them alone that the costs assessor directs their attention.

[77] The requirement for a notice of objection, and the entitlement to a default assessment in the absence of one follows the philosophy of the UCPR, facilitating the resolution of the real issues with a minimum of expense and without undue delay."

• [56] As I read these passages, both Atkinson J and Bradley J focus on the purpose of a notice of objection under r 706 as being to direct the intention of the costs assessor to the objections which are made to each item in the costs statement so as to enable the costs assessor to identify the basis of each objection and make a decision about it in an efficient and cost effective manner.
• [57] It is common ground that the respondents did not number each of objection in the First Notice as required by r 706(2)(a). Had the applicants used Form 61, they would have.
• [58] Each objection is numbered consecutively in the Second Notice.
• [59] In the First Notice, each item in the costs statement was identified by its item number in a separate column on the left-hand side consecutively, but leaving out any item number in respect of a claimed item in the costs statement to which there was no objection by the applicants. In that sense, and despite the absence of an additional column which also numbered each objection consecutively, it is my view that a costs assessor would have no difficulty identifying each item in the costs statement to which an objection was taken.
• [60] Accordingly, despite the failure of the respondents to comply with r 706(2)(a), I would not be prepared to declare that the First Notice was not effectual for this reason.
• [61] There is no dispute between the parties that the requirements of r 706(2)(b) was satisfied.
• [62] The remaining issue then is whether the respondents complied with r 706(2)(c).
• [63] In this respect, the respondents' main contention[8] is that the use by the respondents in the introduction to the First Notice (and for that matter the Second Notice) of stated principles and the more than 50 objections where the stated reason is "as above", including where "as above" on numerous occasions follows that same statement immediately above, means that it is "difficult if not impossible to determine which of the preceding objections is sought to be relied on".
• [64] I do not agree.
• [65] Subrules 706(3) - (5) are included specifically to avoid arguments of this nature. It is clearly the case that the intention of these subrules is to provide latitude to a party as to the manner in which it responds to a costs statement and to ensure that the rules are not so prescriptive so as to cause a party to spend unnecessary time and incur unnecessary expense where simplified responses are sufficient to convey to a costs assessor, the basis for each objection.
• [66] In argument, the respondents contended that "as above" was confusing because it was not clear to which reason for an objection "above", the applicants intended to refer. This is an overly pedantic argument to make. On my reading of the First Notice, it is plain that "as above" where it follows another "as above" should be read as meaning "as immediately above". There is no other sensible way to read it. Where "as above" appears consecutively, the reader is directed to the ground of objection immediately above the first time the phrase appears in that consecutive list.
• [67] The point is made more plain because, by way of example, the first time the phrase "as above" is used, it appears second in the table, immediately following the first entry which is expressed in this manner:

These claims are solicitor/client in nature. This information should have been provided to the Costs Applicants during the conference at item 1 - it is not necessary to repeat in letter form.

• [68] The use of "as above" in this manner in my view would not prevent a costs assessor acting sensibly from being able to identify the basis of each objection and make a decision about it in an efficient and cost-effective manner.
• [69] The respondents also complain about the manner in which the applicants cross-reference particular objections, in the most cases to general objection 1, in the manner I have set out in paragraph [67].
• [70] Another example is in respect of item 216. There the applicants said:

Refer to general objection 1 - this is a solicitor/client cost - for the benefit of the Costs Applicants solicitor only- formal affidavit evidence his later drafted and relied upon and those costs will be conceded. Disallow this claim as not necessary or proper for the conduct of the proceeding.

• [71] General Objection 1 in both the First Notice and the Second Notice is expressed in this way:
  1. General Objection 1 - Necessary and proper costs and solicitor/client claims including excessive work

4.1 The relevant test for costs on the standard basis is that they are necessary of proper. Costs are 'necessary' if the litigation could not have been carried on without them and costs are 'proper' if it was reasonable for a client with a competent solicitor to have incurred those costs in carrying on the litigation.

4.2 At paragraph 25 of the decision in Hennessey Glass and Aluminium Pty Ltd v Watpac Australia Pty Ltd [2007] QDC 057, McGill DCJ stated that the test is whether is was necessary or proper if a prudent person, endeavouring to obtain justice, but endeavouring to do so without any undue expenditure of money, would incur the expense in question.

4.3 Claims are made by the Costs Applicants for work performed on a solicitor/client basis, and many such claims are excessive or comprise unnecessary attendances. The Costs Applicants appear to have taken a solicitor/client approach to claiming these fees and is simply passing on those fees charged by their solicitor. While it is the case that the costs incurred by the Costs Applicants are payable by the Costs Respondents, the test remains one of costs being necessary and proper and must be claimed pursuant to the relevant scale.

4.4 Examples of solicitor/client costs are attendances on the Costs Applicants to provide updates as to the matter progression where no instructions are required. It is not necessary or proper to seek to recover such costs from the Costs Respondents, these are not proper party/party costs nor are they necessary for the conduct of the matter. There are many such examples of this throughout the costs statement. It also appears that in many instances incomplete instructions are obtained thereby necessitating yet further attendances on the Costs Applicants to obtain the necessary information and/or instructions. There are some 80 claims for attendances on the Costs Applicants (not including correspondence with them). There are numerous such claims. Specific item objections are made to such claims.

4.5 There are also some claims where it appears the folio count has been incorrectly calculated thereby inflating the claim for costs. Again, specific item objections are made to such claims.

4.6 There are also claims for attendances relating to potential witnesses or experts for which no affidavit or report was ever served or relied upon by the Costs Applicants in the proceeding. Such claims are not necessary and proper, or are administrative, excessive or costs not allowed under the scale and the fees should be reduced accordingly."

• [72] It can be seen that 'General Objection 1' contains a series of generally expressed, and not overly complicated reasons an objection might be made. They are concepts likely to be familiar to qualified Costs Assessors. Where the applicants have cross-referred to General Objection 1, on each occasion they have included sufficient information to direct the reader to the particular nature of the general objection so as to alert the respondents, and the costs assessor, as to the reason for the objection.
• [73] I have read the First Notice in its entirety. I am satisfied it is in a form which can be considered by a costs assessor for its intended purpose.
• [74] For these reasons, in my view the First Notice was served under r 706. There being no other complaint made by the respondents about the First Notice, there is no basis to declare that it is ineffectual under r 371.
• [75] In the Second Notice, apart from the consecutive numbering, the applicants also replaced the words "as above" with the actual objection to which the reference "as above" was designed to pick up.
• [76] This has assisted with readability, but in reality has not changed the substantive nature of the information conveyed in the document.
• [77] Nevertheless, and despite what I have said in paragraph [60] above, it seems to me that I should declare under r 371(2)(d) that the Second Notice is effectual for the purpose of r 706, if only so as to ensure the parties know which documents should be provided to the appointed costs assessor.
• [78] Because the First Notice was not ineffectual, and because of the declaration I propose to make, a costs assessment should not be undertaken under r 710. Instead, it should proceed under r 712.
• [79] Each party sought relief from the court in this application, however the applicants have been largely successful. In their letter of 11 December 2025, the applicants said[9] the respondents "...would be happy to agree to consent orders for the appointment of the costs assessor [being Mr Peterson] so as to avoid a court appearance and both parties incurring further unnecessary costs".
• [80] The applicants' position in this letter reflects that fact that under r 712, where a costs assessor has been agreed, the parties may apply for a consent order under r 666 that the particular costs assessor be appointed to carry out the costs assessment. The applicants set out their position which was largely reflected in their response to the application before me.
• [81] The respondents should have accepted that invitation. The failure to do so should be reflected in a costs order against the respondents because the need for court appearance would have been avoided.
• [82] Despite this, the applicants sought an indulgence because they did not comply strictly with the requirements of r 706.
• [83] In the circumstances it is appropriate that the respondents pay half of the applicants' costs of this application to be assessed on the standard basis and calculated from 12 December 2025, being the day after the invitation was made by the applicants.

• [84] The orders therefore will be:
  1. Pursuant to r 371 of the Uniform Civil Procedure Rules 1999 (UCPR), it is declared that the document entitled "Amended Notice of Objections dated 11 December 2025" is effectual as a notice of objection for the purposes of r 706 of the Uniform Civil Procedure Rules 1999.
  2. Pursuant to r 712 of the UCPR, Mr Jeffrey Peterson is appointed as the costs assessor to undertake the costs assessment in this matter.
  3. The respondents pay half of the applicants' costs of this application calculated on the standard basis from 12 December 2025.

[1] Affidavit of Concepion Maria Navarro filed 18 Nov 2025, CMN3.

[2] Applicants' written outline, para 3.

[3] Applicants' written outline, para 4(c).

[4] Applicants' written outline, para 8.

[5] Affidavit of Michael Richard Clive sworn 18 November 2025, MRC 10.

[6] Respondents' written outline, para 29.

[7] Respondents' written outline, para 28.

[8] Respondents' written outline, para 26.

[9] Affidavit of Concepion Maria Navarro filed 18 Nov 2025, CMN 1.