Guilfoyle v Newman and Newman

DISTRICT COURT OF QUEENSLAND

CITATION:

Guilfoyle v Newman & Newman [2004] QDC 316

PARTIES

STACEY LEANNE GUILFOYLE
(Applicant/Plaintiff)

V

FRANK NEWMAN
(First Respondent/Defendant)

And

LESLEY NEWMAN
(Second Respondent/Defendant)

FILE NO/S:

27 of 2003

DIVISION:

Civil

PROCEEDING:

Chamber Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

16/9/04

DELIVERED AT:

Ipswich

HEARING DATE:

17/7/04

JUDGE:

Judge Richards

ORDER:

That the plaintiff pay the costs of the application for summary judgment to be assessed.

CATCHWORDS:

Costs – summary judgement application

COUNSEL:

R V Hanson for plaintiff

A H Morris for respondents

SOLICITORS:

Patrick Murphy for the Applicant

Primrose Couper Cronin Rudkin for the respondent

The decision in a summary judgement application in this matter was delivered on 17 July 2004. The parties sought to make further submissions on costs.

Rule 299(1) of the Uniform Civil Procedure Rules provides:

“If it appears to the court that a party who applied under this Part for judgment was or ought reasonably to have been aware that an opposite party relied on a point that would entitle that party to have the application dismissed the court may dismiss the application and order costs to be paid within a time specified by the court.”

In this case the plaintiff’s application for summary judgment was brought after the defendants had filed a defence wherein a number of specific areas of law were raised. The applicant failed in her application for summary judgment. The pleadings demonstrate an arguable partnership depending on proof at trial of whether the agreement between the parties that the dog would be shown and bred could be properly described as a business venture.

As I noted in my previous judgement it may well be that the plaintiff will succeed at trial and that the evidence may not be sufficient to establish that there was in fact a partnership. However, whilst the respondent does not appear to have a strong case, there was, depending on how the evidence unfolds, always a case to argue.

It was argued by the defendant that the application, though not successful, was a difficult one and had the effect of narrowing the issues for trial. However, the narrowing of the issues does not mean that the application should have been made.

It is accepted that the convention in relation to costs is that if the application is found to have been properly brought costs should be costs in the cause or reserved. In this case however, the defendants defence disclosed an arguable defence. In those circumstances the plaintiff should pay the defendant’s costs[1]
[1] [1] see Evans Deakin & co P/L v Kaiser Engineers & Constructions Inc (1968) Qd R 379 at 385

ORDER

The plaintiff is ordered to pay the costs of the application to be assessed unless otherwise agreed.

[2]

CaseChat Overview and Summary

The plaintiff, Guilfoyle, brought an action against the defendants, Newman and Newman, seeking summary judgment on certain claims. The defendants opposed the application, arguing that there were genuine issues of fact and law to be determined at a trial. The court was required to decide whether the plaintiff was entitled to summary judgment on the claims in question, and if not, whether the defendants should be ordered to pay costs to the plaintiff.

The court considered the evidence presented and the legal principles applicable to the summary judgment process. The plaintiff argued that there were no genuine issues of fact or law to be determined, and that the defendants' opposition was without merit. The defendants, on the other hand, contended that there were genuine issues of fact and law that needed to be resolved at a trial. The court found that the defendants' opposition had raised genuine issues that could not be determined on the papers alone, and that the plaintiff was not entitled to summary judgment. The court also found that the defendants' opposition was not frivolous or vexatious, and that the plaintiff was not entitled to costs as a sanction.

The court ordered that the plaintiff pay the costs of the application for summary judgment to be assessed. The court noted that while the plaintiff was not entitled to summary judgment, the defendants' opposition was not without merit, and that the plaintiff's application was not frivolous or vexatious. The court considered it appropriate to order the plaintiff to pay costs, but to leave the assessment of those costs to a later date.

The court's decision highlights the importance of carefully considering the evidence and legal principles when deciding whether to grant summary judgment. The court also emphasised the need to balance the interests of the parties and to avoid punishing a party for bringing a genuine but ultimately unsuccessful application. The final orders reflect this balance, with the plaintiff being ordered to pay costs, but with the assessment of those costs left to a later date.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Guilfoyle v Newman & Newman [2004] QDC 316
PARTIES	STACEY LEANNE GUILFOYLE (Applicant/Plaintiff) V FRANK NEWMAN (First Respondent/Defendant) And LESLEY NEWMAN (Second Respondent/Defendant)
FILE NO/S:	27 of 2003
DIVISION:	Civil
PROCEEDING:	Chamber Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	16/9/04
DELIVERED AT:	Ipswich
HEARING DATE:	17/7/04
JUDGE:	Judge Richards
ORDER:	That the plaintiff pay the costs of the application for summary judgment to be assessed.
CATCHWORDS:	Costs – summary judgement application
COUNSEL:	R V Hanson for plaintiff A H Morris for respondents
SOLICITORS:	Patrick Murphy for the Applicant Primrose Couper Cronin Rudkin for the respondent