Elphick v Elliott & Anor

[2002] QSC 285

Supreme Court of Queensland

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Set-off
4. › Set-off of costs against damages in same proceeding
5. › Whether court has jurisdiction to set off unassessed costs against judgment for damages
6. › Whether equitable set-off or inherent power
7. › Uniform Civil Procedure Rules (Qld), r 734, r 709
1. Practice and Procedure
2. › Costs
3. › Set-off
4. › Discretion to order set-off
5. › Whether discretion should be exercised where applicant has delayed assessment of costs
6. › Unreasonable delay in preparation of bill of costs
1. Equity
2. › Equitable set-off
3. › Impeachment test
4. › Whether costs order impeaches title to judgment for damages
5. › Whether close connection between claims sufficient

Quick Take

In Queensland, following the removal of the former Order 91 Rule 11 from the Uniform Civil Procedure Rules, the power to set off a costs order against a judgment for damages in the same proceeding survives as an equitable set-off based on the impeachment test. However, a party seeking such a set-off must act promptly in having its costs assessed; unreasonable delay in preparing a bill of costs and unilateral withholding of judgment funds will justify refusal of the set-off in the exercise of discretion.