Wallis v Hunt & Ors [2019] QDC 33

[3] I also indicated, subject to submissions to the contrary, that I would order the plaintiff pay the defendants' costs of and incidental to that application to be assessed on the standard basis. Written submissions were provided to me in respect of that matter. I shall deal with such costs shortly.

[4] Subsequently the plaintiff filed an amended statement of claim. She sought the sum of $94,950.00 as damages for breach of contract and/or as a debt for services rendered and money advanced to the defendants for their benefit. The defendant filed a defence in response but also applied for judgment pursuant to r 293 UCPR. That application originally came before another Judge of this Court on the 11th of March this year. It was adjourned because the plaintiff had served, late in the piece, an affidavit of the plaintiff. The Court reserved costs of that adjournment.

[5] Before me, counsel for the plaintiff effectively conceded I should order that the plaintiff pay the defendants' costs thrown away by reason of that adjournment and I will shortly do so.

[6] The defendants' application for judgment was not ultimately proceeded with and the only remaining issue concerns costs of the application. The defendants submit that they should recover costs on an indemnity basis. The making of such an order is opposed by counsel on behalf of the plaintiff.

[7] The defendants' application for judgment was because, they submitted, the plaintiff had no prospect of success with her claim as pleaded in the amended statement of claim. Their submission was that the agreement alleged by the plaintiff to have been entered into between her and the defendants related to a property which was in fact purchased by a company as trustee for a unit trust in which, I observe, each of the parties had an interest. Consequently, it was said any money advanced or expended by the defendant was for the benefit of the company as trustee for the unit trust and not for the defendants personally.

[8] No doubt in response to that submission, but in circumstances where counsel for the plaintiff submits that the plaintiff would, in any case have been successful in opposing the application for judgment, the plaintiff now relies on a further amended statement of claim. In view of that further pleading, the defendants now consent to dismissal of their application but do so, they submit, because the nature of the further amended pleading, namely that the defendants knowingly participated in a breach of fiduciary duty raises a proper claim.

[9] There is, in my view, something to be said for the plaintiff's counsel's submission that it might have been successful in opposing the application, even without reliance on the further amended pleading. It is, however, in my view, unnecessary to finally resolve that issue in order to determine costs.

[10] I accept that the failure of the plaintiff's legal advisers to have properly articulated the plaintiff's instructions in an appropriate fashion so as to support her claimed legal remedy has resulted in the various applications that have been before me, both in 2018 and today. In my view, it is appropriate to order that the plaintiff pay the costs of the defendant of and incidental to today's application including costs thrown away by reason of the adjournment of the matter on the 11th of March.

[11] I do not, however, consider that it is appropriate to order such costs be assessed on an indemnity basis. I am conscious of the relevant issues articulated by Sheppard J in Colgate-Palmolive and Anor v Cussons Pty Ltd [1993] FCA 536; [1993] 118 ALR 248. I do not think the pleading of the amended claim that followed my judgment of November 2018 could properly be described as being evidence of misconduct or of the making of allegations which ought never to have been made, or which were groundless or in wilful disregard of either known facts or clearly established law.

[12] Different considerations apply with respect to the pleading the subject of my consideration in my judgment delivered in November last year. The original pleading was totally misguided seeking, inter alia, to appoint trustees for sale of the property pursuant to s 38 of the Property Law Act 1974 (Qld), despite the fact that the parties to this action have never themselves had any direct interest in the property, and despite the trust company having sold the property to another entity some time earlier. The plaintiff, at the hearing of that application, had relied on an entirely new pleading. Some of the claims raised in that new pleading were statute barred and I did not allow them to be made. Others were allowed to be made because, as I found, they arose out of the same or substantially the same facts as the earlier and now abandoned claim.

[13] In my view the plaintiff's legal advisers' conduct in drawing the original pleading without, as I have found, properly understanding the facts of the case or the nature of the plaintiff's remedy, was the direct cause of the problems which resulted in the application then before me. In particular, I am mindful of the fact that prior to the filing of the defendants' application late last year, the plaintiff had not amended its pleading. It did so only after receipt of that application. In such circumstances it is, in my view, appropriate that the plaintiff pay the defendants' costs of and incidental to the application heard on the 20th of September 2018 to be assessed on an indemnity basis.

1. The plaintiff pay the defendants' costs of and incidental to the application filed on the 8th of August 2018 to be an assessed on an indemnity basis.

2. The defendants' application filed on the 12th of February 2019 be dismissed.

3. The plaintiff pay the defendants' costs of and incidental to the application filed on the 12th of February 2019 including reserved costs to be assessed on the standard basis.

4. The plaintiff have leave to file a further amended claim and further amended statement of claim.

[15] In my assessment the plaintiff herself is not to blame for the inability of her legal advisors to properly articulate the nature of her remedy. Consequently it seems to me appropriate that she not be personally required to pay the costs that I have been ordered to be paid. In my view her legal advisors should recompense her for those costs. In that circumstance, I will additionally direct that the plaintiff's solicitor, within seven days of receipt of these reasons, and those delivered on 15 November 2018, from my Associate, provide to the plaintiff a copy of those reasons.