Default Assessment upheld -Service of Costs Statement by email/ inadequate objections

Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2020] QCA 2

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – TAXATION AND OTHER FORMS OF ASSESSMENT – APPEAL, REVIEW OR REFERENCE

This was an Appeal from a decision of a Magistrate not to set aside the Default Assessment pursuant to rule 709 Uniform Civil Procedure Rules 1999 due to the alleged failure of the Respondent/ Costs Applicant to serve a Costs Statement. The Respondents proceeded with a Default Assessment pursuant to r 710 of the (Qld) as the Appellant/ Costs Respondent did not serve a Notice of Objections in response to the Costs Statement.

The self-represented Applicant contented that service was not effected when Costs Statement was emailed to the Defendant, that an Amended Notice of Objections was “meritorious” and that he was denied procedural fairness when he received the Respondent’s / Costs Applicant’s Affidavit in response to the Appellant/ Costs Respondent’s 15 minutes prior to the Hearing.

The Magistrate when determining that the Appellant was served with the Costs Statement by email and also held that the Objections delivered in response to the Costs Statement was not in compliance with the rule 706 of the UCPR in any event and upheld the Assessment.

Philippides addressed numerous objections, however dismissed or considered same trivial. However we will address His Honours comments in respect to the Care and Consideration. The Appellant/ Costs Respondent contended that Care and Consideration surcharge was 50% of professional fees claimed. $28,475.22 in total professional fees was claimed including $19,810.65 in professional fees and $8,664.57 for care and consideration was unreasonable [25]. The Appellant/ Costs Respondent also referred to Practice Direction 22 of 2018, However the Court accepted that the Practice Direction referred to fees assessed on a Standard and not Indemnity basis as costs were ordered [26]. The Court also accepted the notation on care and consideration noting that the Solicitors where acting as advocate without instructing Counsel. [27]

The Court also addressed the Appellant/ Costs Respondent’s argument that he did not consent to service by email. However the Court rejected these arguments as on the Respondent’s/ Costs Applicant’s submissions/ evidence communications between the parties occurred by email. [41]

The Court also rejected the Appellant/ Costs Respondent’s arguments as to service of the Respondent’s / Costs Applicant’s Affidavit, nor sought an adjournment to address same and neither where there any controversial issues in the Affidavit in any event. The Court also dismissed that the arguments that the Magistrate failed to consider his document namely his Objections.

The Appeal was dismissed.