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Quality Corporation (Aust) Pty Ltd v Millford Builders (Vic) Pty Ltd

 

[2005] QCA 137

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Quality Corporation (Aust) Pty Ltd & Ors v Millford Builders (Vic) Pty Ltd & Ors [2005] QCA 137

PARTIES:

QUALITY CORPORATION (AUST) PTY LTD ACN 071 974 957
(first plaintiff/first applicant)
JOHN ERIC SKELTON
(second plaintiff/second applicant)
MARY DIANNE SKELTON
(third plaintiff/third applicant)
v
MILLFORD BUILDERS (VIC) PTY LTD ACN 005 342 530
(first defendant/first respondent)
PHILLIP KEITH STRAWFORD
(second defendant/second respondent)
ROSLYN JOY THOMAS
(third defendant/third respondent)
RESORT BROKERS PTY LTD ACN 010 536 811
(fourth defendant/fourth respondent)
RODNEY ASKEW
(fifth defendant/fifth respondent)

FILE NO/S:

Appeal No 3892 of 2003

SC No 10942 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application - Civil

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

29 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

29 April 2005

JUDGES:

McPherson JA and Muir and Wilson JJ

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Order made on 12 December 2003 varied to the form:

“The defendants pay the plaintiffs’ costs of the entire proceedings in the Trial Division on an indemnity basis on the scale of fees in the Supreme Court.”

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – CORRECTION UNDER ‘SLIP RULE’ – error in order rectified – costs orders

COUNSEL:

A Musgrave for the applicants

D J Morgan for the respondents

SOLICITORS:

Siemons Lawyers for the applicants

Macrossans Lawyers for the respondents

McPHERSON JA:  The first plaintiff Quality Corporation together with second and third plaintiffs, brought proceedings in the Supreme Court against the defendants Millford Builders and others arising out of the sale by the latter of a motel business at Noosa.  Before Justice Philip McMurdo the first plaintiff's claim for damages succeeded, but not those of the other two plaintiffs, against whom judgment was given for a proportion of the defendants' costs.

 

All three plaintiffs appealed against the judgments at first instance.  On appeal those judgments including the order for costs were set aside.  Instead, judgment was given for the second and third plaintiffs for sums of $10,000 and $12,000 respectively and in favour of the first plaintiff for an amount increased on appeal to $234,000, in each case with interest.  The judgment on appeal was delivered on 14 November 2003.  There was a subsequent application to this Court, which on 12 December 2003 varied the judgments given on appeal on the earlier date by adding orders relating to interest, the scale or basis for assessing costs, and the costs of the appeal.  None of these matters is now in issue.

 

Each of the orders made in this Court on 14 November 2003 and 12 December 2003 ordered the defendants to pay the plaintiffs' "costs of the trial" on the basis specified in those orders. It is now being perceived that providing in the order for "costs of the trial" instead of "costs of proceedings" has the consequence of excluding from the costs awarded in favour of the plaintiffs various items of costs that would ordinarily be recoverable as preliminary to trial incurred in bringing the proceedings to trial.

 

The distinction between "costs of trial" and "costs of action" is well known, as can be seen by perusing, for example, Nally v Walsh (1898) 24 VLR 41, 47-48, and standard texts on costs, such as Pridmore & Scott, Guide to Costs (13th ed 1932), at 917, and Professor Dale Port's recently published Law of Costs (2003) at 10, in P19.  In this instance it is clear that the intention of the Court was to award the costs of the action rather than simply the costs of the trial.  There was no reason for limiting it in the way it was expressed so as to exclude the preliminary costs incurred.  It is a slip that must be corrected.

 

On behalf of the plaintiffs Mr Musgrave has asked under UCPR 667(2)(d) or UCPR 388 that we vary paragraph 2 of the order made on 12 December 2003 so that it will read as follows:

 

"The defendants pay the plaintiffs' costs of the entire proceedings in the Trial Division on an indemnity basis  on the scale of fees in the Supreme Court."

 

In other words, that the order, as it was, be varied to refer, not to the costs of trial, but to the costs of the entire proceedings.  Saying "entire proceedings" may gild the lily slightly; but in view of the need to make this application, there can be no objection on this occasion to stating it in a way that removes all trace of the imperfection of the earlier version of the order.  Ordinarily, however, "costs of proceedings" will, without the additional emphatic epithet, suffice to include what used to be called the costs of action now proceedings.  We do not wish to encourage debates like those that used at one time in the past to be precipitated by the use of the phrase, "full costs of the action".

 

The order made on 12 December 2003 will therefore be varied so as to make it accord with the form sought, as I have set it out in these reasons earlier.  That is the order that I propose should be made.

 

MUIR J:  I agree.  Although there is an inconsistency in the reasons of Justice Davies, it is plain enough, I think, that the majority intended to order costs of the proceedings rather than costs of the trial.  When reference is had to her Honour Justice Wilson's reasons, it is abundantly plain that she intended to make no temporal limitation to that order.

 

WILSON J:  I also agree.  As Justice Muir has just pointed out, I would have regarded the offer as one within the rules, and it would have followed that the defendants would have had to pay the plaintiffs their costs of the entire proceeding in the Trial Division on the indemnity basis.

 

McPHERSON JA:  The order will be as I have stated it.

 

...

 

McPHERSON JA:  The Court considers that this is a case where there should be no order as to costs.  Thank you.

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Editorial Notes

  • Published Case Name:

    Quality Corporation (Aust) Pty Ltd & Ors v Millford Builders (Vic) Pty Ltd & Ors

  • Shortened Case Name:

    Quality Corporation (Aust) Pty Ltd v Millford Builders (Vic) Pty Ltd

  • MNC:

    [2005] QCA 137

  • Court:

    QCA

  • Judge(s):

    McPherson JA, Muir J, Wilson J

  • Date:

    29 Apr 2005

Litigation History

No Litigation History

Appeal Status

No Status