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Leonardi v Payne

 

[2017] QSC 319

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Leonardi v Payne & Anor [2017] QSC 319

PARTIES:

SUSAN MAREE LEONARDI
(plaintiff)
v
CLINTON JAMES PAYNE
(first defendant)
ALLIANZ AUSTRALIA INSURANCE AUSTRALIA LIMITED
ACN 000 122 850
(second defendant)

FILE NO/S:

Townsville 868 of 07

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Townsville

DELIVERED ON:

29 November 2017 (Ex tempore)

DELIVERED AT:

Townsville

HEARING DATE:

29 November 2017

JUDGE:

Justice North

ORDER:

  1. It is declared that the sum of $89,764.03 is payable pursuant to s48(1) of the Supreme Court Act 1995 by the Second Defendant to the Plaintiff as interest on the costs payable to the Plaintiff by the Second Defendant pursuant to the order of the Court made on 16 December 2009.
  2. The Second Defendant is directed to pay to the Plaintiff the said sum of $89,764.03 within twenty-one (21) days of the date hereof.
  3. The Second Defendant pay the Plaintiff’s costs of and incidental to this Application to be assessed on an indemnity basis.

CATCHWORDS:

INTEREST – RECOVERABILITY OF INTEREST – interest on costs – accrual of right where consent order as to costs – where costs were then unascertained – where plaintiff contends interest is payable from date of the order made by the court – where defendant contends interest is payable from the date the costs were ascertained – whether repealed act applies – whether Supreme Court Act 1995 (Qld) applies – whether Civil Proceedings Act 2011 (Qld) applies

LEGISLATION:

Acts Interpretation Act 1954 (Qld)

Civil Proceedings Act 2011 (Qld)

Supreme Court Act 1995 (Qld)

Uniform Civil Procedure Rules 1995 (Qld)

CASES:

Dyktynski v BHP Titanium Minerals Pty Ltd [2001] 50 NSWLR 710, cited

Hunt v R M Douglas (Roofing) Ltd [1991] AC 398, cited

Newton v The Grand Junction Railway Company (1846) 16 M&W 139, cited

Reis v Carling (1908) 5 CLR 673, cited

Watson & Anor v Ward [2013] QCA 393, cited

COUNSEL:

T Quinn (plaintiff)

W Elliott (first and second defendants)

SOLICITORS:

Roati Legal (plaintiff)

Moray & Agnew Lawyers (first and second defendants)

  1. On 6 December 2007 the plaintiff commenced proceedings in the Supreme Court in this registry for damages for personal injury arising out of a motor vehicle accident.  Following a trial, judgment was given for the plaintiff against the defendant on 26 November 2009.  The learned trial Judge reserved the question of costs and directed that there be submissions about that.  On 16 December 2009, a consent order was made that the second defendants pay the plaintiff’s costs of and incidental to the action, including any reserved costs, on an indemnity basis. 
  2. Subsequent to that order, an order was made by the Registrar for the assessment of the costs on 18 August 2011, and on 28 August 2012 the certificate of the costs assessor who had been appointed by the Registrar in August 2011 issued.  In his certificate, the costs assessor assessed the costs payable by the second defendant to the plaintiff at $310,424.71.  Some days later on 31 August 2012 the certificate of the assessor was filed in the Court. 
  3. The following day on 1 September 2012, the Civil Proceedings Act 2011 (Qld) commenced, repealing the Supreme Court Act 1995 (Qld).  That has some significance for the reasons that become apparent.  A little later on 16 October 2012, the Registrar made an order acting pursuant to Uniform Civil Procedure Rules 1995 (Qld) r740(1) and r740(2), that the defendants pay the plaintiff’s costs assessed at $310,424.71.  It is not in dispute that subsequently on 15 November 2012, the second defendant paid to the plaintiff the sum of $260,424.71 and that later on 26 November 2012 the balance of $50,000 was paid. 
  4. Just to complete the picture but not materially to the point, the parties sought a consent order of the registrar which was made on 16 December 2015 requiring the second defendant to pay interest on the costs.  Further, by consent it was ordered that the amount of interest be paid as agreed, or failing agreement, as determined by the Court and the order directed the parties to proceed to an application before the Court for directions or orders, hence the hearing before me today on the application filed by the plaintiff on 5 September 2017. 
  5. In what appears to have been a hard fought, and is plainly a protracted piece of litigation, for the purposes of the hearing today before me, some matters were agreed and common ground between the parties.  The chronology of events or steps as recited above is not disputed.  Moreover, it is common ground and agreed that some money is payable by the second defendant to the plaintiff for interest and it is agreed that at all times the applicable rate for the calculation of interest is at 10 percent.  The issue is over what time or period the interest should be calculated.  The plaintiff contends that interest is payable by reason of s48 of the repealed Supreme Court Act 1995 (Qld) from the date of the order made by the Court for the payment of costs to be assessed on 16 December 2009 calculated on the amount as assessed to 15 November 2012 when the first substantial payment was made and then subsequently for the period from 16 December 2012 to 26 November 2012 on the balance of $50,000 at 10 per cent. 
  6. The second defendant submits that interest, while payable, is only payable from the 16 October 2012, which is the date when the Registrar made an order for the payment of costs acting pursuant to Uniform Civil Procedure Rules 1995 r740(1) and r740(2).  The second defendant submits that its contention with respect to the period over which interest should be calculated is supported by s59 of the Civil Proceedings Act 2011 (Qld), which is in broad terms the statutory successor to the repealed s48 of the 1995 Act. 
  7. In order to address the competing contentions, I take the view that it is necessary, and in this respect I am following in some respects the submission of Mr Quinn of counsel who appeared for the plaintiff, to categorise what entitlement or right, if any, which accrued to the plaintiff upon the making of the order on 16 December 2009.  In this respect, the decision of the Court of Appeal in Watson & Anor v Ward [2013] QCA 393 is in my view instructive. 
  8. That appeal concerned the question of interest payable upon amounts ordered to be paid subsequent to ascertainment or subsequent to certain eventualities following a sanction of a settlement of a personal injuries claim. The passages in the reasons of the judgment of Fraser JA (with whom Gotterson and Morrison JJA agreed) at [11], and at [17] and [18] suggest that if a right to interest accrued under the terms of s48 of the 1995 Act at the time of the order in 2009, then by reason of the operation of s20 Acts Interpretation Act 1954 (Qld) these rights accrued subject to the operation of s48 and have continuing effect and operation notwithstanding the repeal of the 1995 Act. 
  9. Decisions of high authority support the proposition that an order such as that made on 16 December 2009, even though for an unascertained amount, confer a right to costs and subject to statute to interest on the costs if the costs are not paid following subsequent ascertainment. 
  10. I was referred to a number of authorities.  The first was a decision of the Court of Appeal in New South Wales in Dyktynski v BHP Titanium Minerals Pty Ltd [2001] 50 NSWLR 710 and specifically in the judgment of Meagher JA with whom Spigelman CJ and Powell JA agreed.  In that appeal, the Court was considering a section of the Workplace Injury Management and Workers Compensation Act 1998 in New South Wales which was in terms, in my view, materially indistinguishable from s48 of the 1995 Act.  At [8] of his reasons, Meagher JA said of the submission by the applicant that it was a wholly incorrect analysis of position and: 

...That an order for payment of costs is an order to pay a sum of money is perfectly clear.  It is true that at the stage when the order is made the sum of money is unquantified, but through various mechanisms it later becomes quantified. 

His Honour then went on at [10] to say in respect of the order: 

In my view, it operates from the date of the making of the order.  Again, that is in line with the normal principles applied in similar legislation…  and is the Incipitur rule.  The fact that the sum was not quantified when the order was made does not stop the order operating from that date in this case any more than it did in Minister for Administering Environmental Planning and Assessment Act 1979 v Carson.  Moreover the section it seems to me, has the same result.  It was subsection (2) that said that interest ordered should be paid and be calculated from the day when the order was made.  In the present case the interest is calculated from 3 October 1997. 

  1. Speaking of discretionary considerations his Honour (at [12]) had this to say: 

The section does not say that an award of interest requires an exercise of the Court’s discretion.  The section says quite to the contrary.  I’m of the view that the section shows that the recipient of an order for costs carrying with it interest is entitled to that interest as from the date the order was made, unless the Court otherwise orders. 

Similar sentiments were expressed in the speech of Lord Ackner delivering the judgment of the Court of the House of Lords in Hunt v R M Douglas (Roofing) Ltd [1991] AC 398 where that Court unanimously held that the interest ran from the date of the order even though the costs were yet to be ascertained. 

  1. Those decisions are, in my view, not only of high authority, but also so clear and emphatic as to bind me.  In my view it appears that they proceed following cases of old authority to the effect that an order of the type made in 2009 creates in the beneficiary of the order a right to interest on the costs if the costs, once ascertained, are not paid and running from the date of the order (see further, for example, Newton v The Grand Junction Railway Company (1846) 16 M&W 139 and Reis v Carling (1908) 5 CLR 673). 
  2. Returning to s48 of the 1995 Act and to the decision of the Court of Appeal in Watson & Anor v Ward, when the order for payment of costs made in favour of the plaintiff was made on 16 December 2009 interest became payable under s48(1) from that date on so much of the money as was from time to time unpaid.  That entitlement or right accrued in favour of the plaintiff on that date. To prevent injustice in the case of costs yet to be ascertained, s48(2)(b) provided that if the costs were paid within 21 days of ascertainment interest should not be payable unless otherwise ordered. 
  3. I need not further consider which is the date of ascertainment, be it 28 of August 2012 when the certificate of costs assessor issued, or 1 September 2012 when the Registrar filed the certificate because it is clear that the costs were paid more than 21 days after the latter date.  Further, it is in my view not necessary for me to further consider the interpretation of s59 of the Civil Proceeding Act of 2011 (Qld) and Uniform Civil Procedure Rules 1995 (Qld) r740 which were relied upon by the respondent.  This is because in the particular situation that applies here it was s48 of the repealed 1995 Act which  has operative effect because of the rights accrued by the order made on 16 December 2009 when it was in force. 
  4. For the same reasons I do not have to, in my view, consider the possible application of the decision of Jackson J in Chiropractic Board of Australia v Jamieson (No 2) [2013] QSC 111 which concerns different issues to do with the entitlement to an order for costs and considers Uniform Civil Procedure Rules 1995 (Qld) r740 because his Honour’s reasons do not turn upon or consider the accrued operative effects of rights created under s48. 
  5. For the reasons I have given the plaintiff is entitled to the declarations and orders for payment he seeks and I will hear further submissions with respect to that and also with respect to costs of the application. 
Close

Editorial Notes

  • Published Case Name:

    Leonardi v Payne & Anor

  • Shortened Case Name:

    Leonardi v Payne

  • MNC:

    [2017] QSC 319

  • Court:

    QSC

  • Judge(s):

    North J

  • Date:

    29 Nov 2017

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment [2017] QSC 319 29 Nov 2017 -

Appeal Status

No Status