Littler v Price
[2004] QDC 289
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- Unreported Judgment
- Appeal Determined (QCA)
- Littler v Price[2004] QDC 289
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Littler v Price[2004] QDC 289
Littler v Price[2004] QDC 289
DISTRICT COURT | No D4924 of 2001 |
CIVIL JURISDICTION
JUDGE BOULTON
ALAN JOHN LITTLER AND SUSAN ELIZABETH LITTLER | Plaintiffs |
and
LINDA JEAN PRICE | First Defendant |
and
C&L PRICE PTY LTD (ACN 060 624 008) TRADING AS LNDA PRICE BUSINESS, INSURANCE AND INVESTMENT SERVICES | Second Defendant |
and
MARK BEORGE TEARE | Third Defendant |
BRISBANE
..DATE 23/07/2004
JUDGMENT
MR A COLLINS (solicitor of Quinn & Scattini) for the plaintiff NO APPEARANCE by or on behalf of the defendants
HIS HONOUR: This is the matter of Littler. I think you might be the only one appearing, Mr Collins.
MR COLLINS: Thank you, your Honour.
HIS HONOUR: I received an affidavit just only a few minutes ago.
MR COLLINS: From Mr Cohen or-----
HIS HONOUR: No, I thought it came from your side to suggest that merely that there had been no offer made-----
MR COLLINS: Yes.
HIS HONOUR: -----to settle on behalf of the defendants in the proceedings and merely stating that that had been conveyed to the defendants.
MR COLLINS: Yes.
HIS HONOUR: And that it wasn't the subject of any disagreement.
MR COLLINS: And we saw a letter from Mr Cohen saying he opposed the affidavit being received but confirming that no - that he didn't know what the first and second defendants - whether they had made an offer.
HIS HONOUR: No.
MR COLLINS: And that the third defendant had made no formal offer. But we say to your Honour - it's Mr Lanham's affidavit - there was no offer ever made by the defendants, I'm instructed.
HIS HONOUR: It doesn't seem to be significant here anyway.
MR COLLINS: No.
HIS HONOUR: So that if there's been an objection to that affidavit being received I won't receive it at this stage, because it really doesn't seem to bear on any issue that I have to decide.
MR COLLINS: Thank you, your Honour.
HIS HONOUR: These are just some brief reasons concerning the issue of costs in the matter of Littler.
In this matter I found in favour of the plaintiffs. The amount of judgment which was handed down yesterday is of the order of $107,000, There had been an offer to settle made by the plaintiffs to the third defendant on 1 June 2004 in the amount of $80,000, The matter was heard between 7 and 11 June 2004 and my decision was reserved.
The offer was not accepted within the 14-day period specified. That period actually did not expire until some days after the decision had been reserved.
Counsel for the plaintiffs seeks indemnity costs pursuant to Rule 360 of the Uniform Court Procedure Rules. The third defendant must show in these circumstances that another order for costs is appropriate in the circumstances. In the event of my being against the submissions of the third defendant, the third defendant then seeks leave to appeal against the costs order that I make in that event.
I note that the Court of Appeal in the case of Beardmore v. Franklins Management Services Pty Ltd (2003) 1 Qd R 1, and also in the case of Cameron v. The Nominal Defendant (2001) 1 Qd R 476, took the view that in these circumstances where an order for costs is made by a District Court judge, that such leave is not required. It is noted that in the case of Beardmore, Ambrose J seems to have taken a dissenting view on that issue, but the effect of those cases would seem to persuade me that leave is not required. I would, however, be disposed to grant leave if such were necessary.
Mr Cohen, who appeared on the application in respect of costs on the 22nd of July 2004, gave three grounds as to why an indemnity order should not be made. He firstly suggested that this was a case involving professional negligence against a solicitor. He pointed out that there was real dispute between the two expert witnesses called in the proceedings as to the nature and extent of the solicitor's duty in the circumstances. He went on to suggest that the dispute was a real one and a difficult one for me, the trial judge, to have to resolve.
His second submission was really along somewhat similar lines. The remaining issue in the trial involved a dispute about the proper value of a unit which was sold by the plaintiffs and formed a basis, then, for the calculation of damages in the judgment. He went on to suggest that again there was dispute between two experts on that point, and that again he suggested that it was not unreasonable for the third defendant to seek to have that issue resolved on a trial.
The third submission points out that the offer of $80,000, to which I have already referred above, exceeds what might have been available if the valuation of capital loss of $30,000, which appears on the schedule of damages, had been accepted by myself. Of course, in actual fact that figure was not accepted by me and I resolved the quantum of capital loss in the amount of $65,000. Mr Cohen submitted in respect of that matter that that was another factor which made it reasonable for the third defendant not to accept the offer and to proceed to trial. They were the three issues raised by him.
Perhaps there was another suggestion that because the offer to settle was made some seven or eight days prior to trial and did not then expire until some days after the decision in the trial had been reserved, that that was some further reason to justify indemnity costs being refused. That last mentioned suggestion was really put to rest in the decision of Moynihan J in the Supreme Court in the case of Fail v. Hutton & Anor (2003) QSC 291, a decision handed down, it seems, on 8 September 2003. In that case the offer to settle was made actually after the reservation of judgment. His Honour makes reference at paragraph 8 of his reasons to the time during which such an offer to settle can be made. At page 13 of his reasons he said:
“There is no question raised in the present case of the second defendant not having had a proper opportunity to consider the offer before it expired or of having been deprived of an opportunity to make an informed decision as to whether or not the offer should be accepted.”
He proceeded then to find that the submission was without merit and to find that the second defendant in that case had not shown that an order other than a costs on an indemnity basis was appropriate in the circumstances.
This present case that I am dealing with seems to me to be an even more satisfactory case where the offer was made after the receipt by the third defendant's legal advisors of the report of Mr Gregory. Some further days elapsed before the trial. The third defendant's solicitors had the advantage of hearing both experts give evidence during the trial and to hear the submissions made at the end of the trial relating to the evidence of those witnesses. The third defendant's legal advisors then had ample opportunity to consider the offer and, of course, did not accept the offer that had been made.
The other submissions made by Mr Cohen really are submissions concerning the uncertainties of litigation. It is commonplace in litigation for there to be vexed issues which need to be determined by the Court, and this particular case was no exception. The test is not here really whether it might have been a reasonable view for the solicitors to take that their particular contentions had some chance of being accepted by the trial judge. The fact of the matter is that they were not and that the third defendant's solicitors then failed to take the opportunity that had been presented to them to settle the proceedings on more advantageous terms.
I might just indicate that in a Queensland case some years ago, which related to a payment into Court - which was a fairly commonplace strategy adopted by some defendants at that time to put a plaintiff in the position of making a decision as to settlement - the Court of Appeal in Lauchlan v. Hartley (1979) Qd R 305 considered a decision of Kneipp J in Townsville where his Honour had refused to make an order concerning costs where a plaintiff's damages had failed to reach the amount of the defendant's payment into Court. One of the grounds that his Honour adopted on that occasion was that different minds might have come to different conclusions in the matter. That, perhaps, is somewhat similar to what is being suggested here, in that there was conflicting evidence which might, in certain circumstances, have produced differing results. However, in the leading judgment of Connolly J in that case his Honour pointed out that that is not an appropriate consideration in the exercise of a discretion in such circumstances. His Honour went on to refer to the decision of the Court of Appeal in Wagman v. Vare Motors Limited [1959] WLR 853 and the decision of Morris LJ at page 861 in that case where he had this to say:
“It cannot, in my judgment, be a good basis for any exercise of the discretion to say that possibly a larger amount might have been ordered. It seems to me, therefore, that on any showing such a consideration could not properly be a competent element of any exercise of discretion. In this case that appears to have been the operative reason for the exercise of discretion in the way in which it was exercised. That operative reason, when analysed, contains no substance.”
Of course, things have moved on in Rules of Court since those days, and of course the Rules of Court now provide even more elaborate procedures to give the parties some motive to settle proceedings at an earlier stage, and, of course, provide some penalties if that option is not exercised.
It seems to me that really the submissions made by Mr Cohen are similar types of submissions; that they might well have done better if the findings had been different. But that is no basis for the exercise of a discretion in their favour in these proceedings.
Now, I could quote from some of the cases that have been handed up to me to discern the reasons behind the Rules of Court, but those reasons appear to be quite obvious and there is little to be gained by attempting to analyse them further.
I therefore take the view that the third defendant has not disclosed any basis for resisting an order for indemnity costs. I intend to order, then, that the third defendant pay the plaintiff's costs of and incidental to the action to be assessed, and I direct that those costs be assessed on an indemnity basis. Now, the amount.
MR COLLINS: Just before your Honour goes to the amount, can I also inform your Honour that with the documents I handed up yesterday, being the offer, there was two letters which also showed that the offer, as required by the rules, had been sent to the first and second defendants as well.
HIS HONOUR: Had they?
MR COLLINS: Yes, your Honour.
HIS HONOUR: I was interested to know that.
MR COLLINS: Yes.
HIS HONOUR: And that was why I had mentioned only the third defendant. So if that offer had been sent there, then the order that I've just made should include the first and second defendants as well.
MR COLLINS: Thank you, your Honour. Did the letter that came through tell your Honour what the total amount was now? There was another 275. I hope the solicitors have put the amount.
HIS HONOUR: There is.
MR COLLINS: It was just short of-----
HIS HONOUR: It's $275, and the amount on Exhibit 19 is $107,664. So that's $107,939, is it?
MR COLLINS: Yes.
HIS HONOUR: I give judgment for the plaintiffs against all three defendants in the sum of $107,939, and I have already made the costs order.
MR COLLINS: There is one last thing left to go. I hand up to your Honour a Schedule 2 from the Uniform Civil Procedure Rules. It's item 83. Your Honour will recall that on behalf of the plaintiff there were two counsel briefed, and what Rule 83 says is, “If more than one counsel is employed for a party and the judge certifies that such employment was reasonably necessary having regard to the difficulty or importance of the case,” and then it goes on to the effect with fees. So my instructions are to seek - basically for the reasons that Mr Cohen outlined, the complexity of the matter. There were four lots of expert or quasi-expert evidence, being: the accountants, who reached agreement at trial; the valuers, which was contested; the solicitors, which was contested; and then there was the lady from the ANZ Bank about the practice of bank officers - we gave a 423 notice under the rules, but just in case she wasn't to be considered an expert - and then there were the factual issues.
HIS HONOUR: Yes. Mr Collins, I am against you on that submission. I do not intend to certify under paragraph 83. From what I saw of the trial, despite the fact that I thought that you handled the matter most capably, it did not appear to me to be a matter that that was desirably one that would attract two counsel.
MR COLLINS: Thank you, your Honour.