Harry Davis Properties Pty Ltd v Mahaffey
[2003] QDC 339
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- Unreported Judgment
- Harry Davis Properties Pty Ltd v Mahaffey[2003] QDC 339
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Harry Davis Properties Pty Ltd v Mahaffey[2003] QDC 339
Harry Davis Properties Pty Ltd v Mahaffey[2003] QDC 339
DISTRICT COURT OF QUEENSLAND
CITATION: | Harry Davis Properties Pty Ltd v Mahaffey [2003] QDC 339 |
PARTIES: | HARRY DAVIS PROPERTIES PTY LTD ACN 010 018 890 Plaintiff v HARLAN WILBUR MAHAFFEY as Trustee under Nomination of Trustees No L241289W and HARLAN WILBUR MAHAFFEY and SHIRLEY MAY BUCHANAN Defendants |
FILE NO/S: | Plaint 21/1997 |
DIVISION: | |
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court, Gympie |
DELIVERED ON: | 1 October 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | (Written submissions) |
JUDGE: | McGill DCJ |
ORDER: | Vary the judgment of 4 November 2002, by adding an order that the counter-claim be dismissed with costs, and that all costs payable by the first defendant to the plaintiff be assessed on the District Court scale appropriate where the amount recovered is less than $50,000. |
CATCHWORDS: | PRACTICE – Costs – amount recovered within jurisdiction of Magistrates Court – whether appropriate to order otherwise. UCPR r 698 Beardmore v Franklins Management Services Pty Ltd [2002] QCA 60 – considered. |
COUNSEL: | A J Taylor for the plaintiff No submissions were received from the first defendant |
SOLICITORS: | Chris Reeve & Co for the plaintiff |
- [1]In this matter on 4 November 2002 I gave judgment on the plaintiff’s claim for $32,239.52 in favour of the plaintiff and published reasons. The defendants’ counter-claim for damages for breach of statutory duty imposed by s 85 of the Property Law Act 1974 was unsuccessful, although it appears that on 4 November 2002 by oversight I omitted formally to dismiss it. On that day I gave the parties leave to put in written submissions as to the scale on which the costs were to be assessed if r 698 was not to apply. I subsequently received submissions from counsel for the plaintiff seeking an order that the costs be assessed on the lower District Court scale. No further submissions were received on behalf of the first defendant.
- [2]This action was commenced some time ago, on 19 September 1997. It claimed initially the balance payable under a mortgage in an amount of $45,354.50, an amount which was then within the limits of the jurisdiction of the Magistrates Court following an amendment which came into operation on 1 August 1997. Prior to that date however it would not have been within that limit, which had been $40,000, and the action was commenced not long after the increase in the limit. At that stage the land which was the subject of the mortgage security had not been sold. There had been two unsuccessful attempts to sell the land at auction, the later on 13 September 1997, so when the action was commenced it was reasonable for the plaintiff to have anticipated difficulty in realising the security. Had the land not been able to be sold the amount claimed would in due course have risen above the Magistrates Court jurisdictional limit of $50,000, because interest was accruing. In the event the completion of the sale in December 1997 yielded an amount of just over $30,000, and the action proceeded, seeking payment of the balance. The defendants counter-claimed as indicated.
- [3]The matter was of some factual complexity, as an examination of my reasons published 4 November 2002 will reveal. They also reveal that it was central to the first defendant’s case that a contract had been signed by the defendants with a Mr Blair, and I did not accept the evidence of either Mr Blair or Mr Mahaffey to the effect that that contract had been signed at the times that they alleged it was signed.
- [4]There is also the consideration that under the mortgage, as referred to in my earlier reasons, the plaintiff is entitled to recover solicitor and own client costs incurred in consequence of default in payment of money intended to be secured. That may mean that the plaintiff is entitled to recover whatever its solicitor has reasonably charged for conducting the trial in the District Court anyway.
- [5]I am conscious that the Court of Appeal, in Beardmore v Franklins Management Services Pty Ltd [2002] QCA 60, when dealing with the application of r 698, did say that generally if the plaintiff recovered a judgment within the jurisdiction of the Magistrates Court the costs order would be on the Magistrates Court scale: [23]. In that case there was a particular reason to award costs on the District Court rather than the Magistrates Court scale, because the plaintiff had the benefit of UCPR r 360, which would not have been realised had the costs been assessed on the Magistrates Court scale. Nevertheless the President took into account the circumstance that the amount recovered was less than 20 percent below the upper jurisdictional limit of the Magistrates Court. I accept that that decision was not intended to provide any great encouragement for courts to allow costs on the higher scale routinely, simply because the amount recovered approaches closely the jurisdictional limit of the lower court. In the present case of course, the amount ultimately recovered was well below the jurisdictional limit, being significantly less than the amount originally claimed although the difference is explained by the fact that the mortgaged property was sold after the action commenced rather than because any aspect of the plaintiff’s claim was unsuccessful.
- [6]Given the circumstances prevailing at the time the action was commenced, I think it was reasonable for the action to be commenced in the District Court, because of the risk that the amount recoverable under the mortgage would exceed the jurisdictional limit of the Magistrates Court before very long. Thereafter on balance, bearing in mind the nature of the matters in dispute and all of the circumstances of the case, in my opinion it was reasonable for the matter to have been left in the District Court. In my opinion all the circumstances of this case justify a departure from the prima facie position established by r 698, and accordingly I will order that the first defendant pay the plaintiff’s costs of the claim to be assessed on the District Court scale where the amount recovered does not exceed $50,000. The plaintiff is entitled to recover the costs of the counter-claim assessed on that scale anyway.
- [7]I therefore vary the order made on 4 November 2002 to add an order that the counter-claim be dismissed with costs, and to order that all costs payable by the first defendant to the plaintiff be assessed on the District Court scale where the amount recovered is less than $50,000.