De Costa v Sankey[2005] QDC 102

[2005] QDC 102

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD4117 of 2004

BRISBANE

DATE 28/04/2005

ORDER

HIS HONOUR: One of the aspects of the Court's business in this proceeding today is the third defendant's application under Rule 161 for better particulars of the plaintiff's amended statement of claim which was filed on the 22nd of September 2004.

The third defendant is sued as the managing agent of premises at 499 Redland Bay Road, Capalaba, which were let to the second defendant company. The two of them were parties to a lease document. The first defendant is claimed to have been the occupant of a house on the property.

The plaintiff is said in his solicitor's affidavit to be a merchant seaman domiciled in France who has few, if any opportunities to visit the property and is perhaps in ignorance of many things that happen in relation to it.

The amended statement of claim asserts that a great deal of damage has been done to the property by the felling of trees and leaving remains of them there as rubbish, by removing and destroying gardens, allowing erosion to occur and the like.

The first defendant is sued in trespass and nuisance, the second defendant as the tenant; the third defendant for negligence and breach of its duty as managing agent.

A request for particulars elicited a substantially informative response but, in some respects, the third defendant is still dissatisfied. There has been detailed examination of particular aspects of the answers and debate as to whether or not they are adequate.

The gravamen of Mr Jennings' argument is in paragraphs 10,11 and 12 of his outline of submissions:

“10. Further particulars of the Amended Statement of Claim dated 4 January 2005 have been provided to the Third and Fourth Defendants.

11. A party must include in a pleading particulars necessary to, inter alia, (a) define the issues for trial, (b) prevent surprise, and (c) enable the other party to plead: r.157 UCPR.
12. The particulars so provided are adequate to define the issue of damages for trial and to prevent surprise to the Defendants. Insofar as the Third and Fourth Defendants seek particulars by way of the production of photographs or diagrams, such request is:

12.1 Not an appropriate request for particulars;

12.2 A request for disclosure;

12.3 A request for evidence."

It is a matter of some amazement to the Court that the parties have subjected themselves to the trouble and cost of arguing matters out in the way they have, as Mr Jennings has made it clear that notwithstanding that the defendants' connection with the property came to an end in November 2000, the unsatisfactory circumstances complained of still exist, meaning that anyone interested (with appropriate permission) may visit the property and see exactly what the situation is.

Paragraph 15 in the amended statement of claim is:

"Damage Suffered by the Plaintiff

15. As a consequence of the matters aforesaid the Plaintiff has suffered loss and damage in the sum of $85,000 being the cost of rectification and restoration of the premises, the Particulars of which are as follows:

1. (a)
   The cost of removing the rubbish on the premises;

1. (b)
   The cost of removing weeds from the premises;

1. (c)
   The cost of slashing the property;

1. (d)
   The cost of replacing the surface soil material;

1. (e)
   The cost of returfing the lawn on the premises;

1. (f)
   The cost of replanting trees to an equivalent size and quality as the trees removed by the First Defendant and Second Defendant, as pleaded herein;

1. (g)
   The replacement of gardens and plants removed or destroyed by the First Defendant or the Second Defendant, as particularised herein."

The Court has been told that the costs referred to are yet to be incurred, the work is yet to be done. While the plaintiff is correct technically in the assertion that photographs and diagrams and the like should not be sought by request for particulars, there seems to me not the slightest doubt that those represent the best means by far of providing information as to what the claim is all about.

What I have been saying ought to be qualified by the observation that, if the situation of the property is unsatisfactory as the plaintiff claims, the responsibility for that may rest with not with the defendants but with others and possibly those who have been subsequent tenants.

The argument has been somewhat difficult for the Court and responsibility for that, it seems to me, rests with both sides of the record. I was invited to consider a letter of Carter Newell of the 2nd of February 2005 as sufficiently setting out everything the Court needed to know about the request for particulars and the answers that were given. That proved to be misleading in at least one respect where the letter indicates that erosion requiring rectification was supposedly particularised as occurring "at the bottom end of the property".

This was an unfair misrepresentation of the response to the request for particulars which identified the vicinity of a pond at the bottom end of the property. It seems to be common ground, mercifully, that there is only one pond. The Court has not been permitted to know what the size of the property is - which means that it cannot form any clear view as to how helpful a reference to the bottom end of the property might be in the context of soil having to be replaced, turf replaced and the like. The property is described as "acreage".

Objection is taken to answers to the effect that rubbish was dumped near the fence line on the basis that the fence line may be very extensive and a reader would not know which particular fence line was referred to. All of these matters could efficiently be clarified, it seems to me, by diagrams.

Essentially I propose to resolve the particulars issue by ordering the plaintiff to give the particulars that the third defendant has requested. In part this simply represents following the line of least resistance. I am not entirely comfortable that the defendant is suffering from the mystification that has been asserted.

In some respects there is a clear indulgence to the third defendant, for example, in requiring particulars to be given of a request which never should have been made in the form it was, as an inquiry "whether the oral direction was in person/via telephone". Understandably the response was that "same was in person/via telephone" which does not inform the third defendant of what it wished to know. The Court has gone to considerable trouble to refine the fourth defendant's original request for particulars (in the interests of getting the issues it has to deal with clarified).

A number of the requests were answered "N/A", for example those inquiring about which garden beds were removed or destroyed as alleged. It is annoying to find that those completely unhelpful answers were picked up in response to a later part of the request as follows: "A description in detail of the gardens removed is provided in paragraph 8(a) hereof."

I have been making the comments I have because I apprehend they may be relevant to the appropriate costs order in respect of the application for particulars. On that application these will be the orders.

The plaintiff must give particulars of:-

1. Whether he gave the oral direction to Barbara Reid mentioned in the amended statement of claim (ASC) 6(b) thereof (a) by telephone or (b) when both were physically present.

2. The names of the tenants and periods of their tenancies with respect to paragraph 13A of the ASC.

3. Describing in words or other sufficient ways:

1. (i)
   Which trees and where were cut down as alleged in ASC paragraph 10(a).

1. (ii)
   Which (if any) fence line on the subject property and which parts thereof had rubbish as referred to in paragraph 10(b) of the ASC dumped on or near them.

1. (iii)
   The location of garden beds (a) removed (b) destroyed as referred to in paragraph 10(c).

1. (iv)
   Every area where erosion occurred as alleged in paragraph 10A subparagraph (a) of the ASC and the extent of it.

1. (v)
   The nature and precise location of weeds removed or to be removed (specifying which) as alleged in paragraph 15(b) of the ASC.

1. (vi)
   The precise area or areas where slashing was or is to be (specifying which) carried out in respect of paragraph 15(c) of the ASC.

1. (vii)
   Where surface soil material was or is to be (specifying which) replaced for the purposes of 15(d) of the ASC.

1. (viii)
   Where lawn was or is to be (specifying which) returfed for the purposes of 15(e) of the ASC.

1. (ix)
   The size and location immediately prior to the time of removal of trees as referred to in paragraph 15(f) of the ASC.

1. (x)
   The precise location of the gardens and details including the immediately previous location of the plants allegedly removed or destroyed in 15(g) of the ASC.

I direct that any item among the particulars ordered may be dealt with by the plaintiff by:(a) deletion of the paragraph to be particularised from the ASC or (b) the filing of an affidavit by the plaintiff to the effect that he cannot give the particulars and that there are no means open to him of obtaining the relevant information.

I am conscious of Mr Jennings' point that the Court should be careful about ordering evidence to be given under the guise of particulars. This case probably comes on a continuum whereby a plaintiff asserting that his finger had been injured in an accident would certainly be ordered to particularise which finger it was and whereby a plaintiff asserting defective building work in a house (for example, to do with floorboards) would be required to particularise where it was rather than rely on general descriptions as Mr Jennings says the plaintiff is entitled to do here.

All things considered, I have made the judgment that the third defendant, which after all was faced with this claim for the first time long after the event, ought to be provided with full information. I suspect the third defendant knows more than it has let on. It seems there have been photographs exchanged and the like in the past.

My inclination in respect of the particulars application is to order that they be costs in the cause.

...

(After further argument).

Costs reserved.

The Court is now concerned with that part of the third and fourth defendants' application which seeks a summary judgment in the fourth defendant's favour against the plaintiff pursuant to rule 293. There has been no resistance to that relief being granted but an argument about whether the fourth defendant should get its costs on the indemnity basis must be resolved.

The similarity of names so far as the third and the fourth defendants are concerned will be noted. They are sued by the plaintiff on the basis of breach of duty as a letting agent whereby the plaintiff's premises which were let out to the second defendant and apparently occupied by the first defendant were damaged.

The truth of the matter is that the third defendant alone was the agent mentioned in a standard form REIQ property management agreement made with the plaintiff as principal. The agreement provided that it commences on 24th February 1997 which has been taken as the date of the agreement.

After naming the agent that agreement adds, "Trading as Ray White Property Management". Now that it is established that the fourth defendant had no contractual or other relations with the plaintiff, there are no standing allegations against it. An amended statement of claim from September last year confines relevant allegations to the third defendant, yet it has taken until now for the matter to be raised and dealt with. The plaintiff seems curiously resistant to following what one would think would be the simpler and cheaper course of discontinuing.

The claim commenced in the Magistrates Court on the 4th June 2002 with a claim and statement of claim pleading that "on or about 24 February 1997 the plaintiff entered an agreement with the third defendant and fourth defendant by virtue of Ray White for the management of the premises."

The preceding paragraph pleads incorporation and that the third defendant and the fourth defendant "carried on the business of Ray White Cleveland". That was a correct description of the situation. Ray White Cleveland is a registered business name in the proprietorship of both the third and fourth defendants. No doubt a search was made which gave the plaintiff and/or his solicitor that information. One would assume that the property management agreement was also available.

A notice of intention to defend and defence were filed in the Magistrates Court on the 9th July 2002. That had been preceded by a request for particulars dated 27th June 2002 to which the plaintiff did not respond until the 18th September 2002.

The request ought to have alerted the plaintiff to the situation which has now become clear. It is sought in respect of the statement of claim "as to paragraph 4 full and precise particulars of the basis on which the fourth defendant (Crawley Investments (Queensland) Pty Ltd) carried on the business of Ray White Cleveland" and also "the usual particulars of the agreement entered into between the plaintiff and the third and fourth defendant."

The plaintiff's solicitors apparently did not wonder why that request for particulars inquired about the fourth defendant and not about the third defendant. The distinction was drawn in the filed defence which admits "that the third defendant carried on the business of Ray White Cleveland but denies that the fourth defendant carried on the business of Ray White Cleveland because the allegation is not true."

A search in evidence before the Court shows the proprietorship of the registered business name as indicated above. However, that business name does not feature in the property management agreement in any way. The defence clearly placed the plaintiff on notice that the defendant admitted the agreement made on or about 24th February 1997 and that the fourth defendant denied that it had done so "because the allegation is not true."  Mr Crawley's affidavit now shows that the property management business is the third defendant's and that the fourth defendant's business is selling real estate.

The next pleading was a reply filed the 1st August 2002. It denied each and every allegation in the third and fourth defendants' defence "save for facts set out in the plaintiff's statement of claim admitted."

The particulars were supplied. The plaintiff indicated that a business name search was its basis for asserting that the fourth defendant carried on the business of Ray White Cleveland. It is a little uncertain whether the response is communicating that the plaintiff and his solicitors actually did not have the property management agreement - whether it was the subject of the reference "which contract is yet to be disclosed before further particulars can be given".

On the December 2002 disclosure by list was made by the third and fourth defendants. The property management agreement was disclosed and presumably inspected not long afterwards by the plaintiff's solicitors.

Until very recently they have remained determined to pursue the fourth defendant. Just why is not clear. Perhaps there has been some suspicion that it truly is involved in some way.

The leading case in respect of costs being awarded on the indemnity basis described in rule 704 is Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248.

The justification for provisions being made for costs to be assessed on that basis was expressed eloquently by Rogers J and Handley JA in passages quoted in Colgate Palmolive at page 251. As Rogers J put it, "There is now a yawning gap between costs recovered by a successful party from the other party on a party and party taxation of costs and the costs payable by the successful party to its own solicitors".

From what one hears, concerns his Honour had in 1987 have been exacerbated over the years. Justice White noted in Di Carlo v Dubois [2002] QCA 225 the increasing number of applications being made for indemnity costs without completing the picture by revealing whether or not more such orders are being made.The present is not one of the categories identified in rule 704 for the awarding of costs on the indemnity basis.

One must turn to the general law - a list of instances of the order being made appears at page 257 in Colgate Palmolive. The one on which Mr Kidston, appearing for the fourth defendant, relies is "where proceedings are commenced or continued in wilful disregard to known facts or clearly established law".

It seems to me that the situation was reached in these circumstances. I do not think the plaintiff can be criticised for commencing his claim as he did. I think it might be unreasonable to have required discontinuance or some similar step forthwith upon the filing of the defence in the Magistrates Court and the filing of the reply. By the end of 2002, however, the plaintiff and his solicitors had all the information necessary to appreciate that no claim could be made against the fourth defendant and possibly sustained.

The "Ray White Cleveland" aspect was really a red herring which, as it happens, the plaintiff introduced. The fourth defendant is entitled to all of the sympathy which Rogers J and Handley JA gave vent to, but I accept that that is not a sufficient basis for an award of indemnity costs being made that a defendant which shows it ought never have been sued in the first place is put to an inordinate amount of costly trouble to extricate itself. It would be different if the plaintiff could show no justification for suing that defendant.

There is a penal aspect about indemnity costs in a context such as the present and the question is one of the justice of requiring the party which must pay the costs to pay them on a basis which is still an exceptional one. On that approach my judgment is that the plaintiff ought to pay the fourth defendant's costs on that basis from the first of January 2003 which allows a reasonable time to inspect and digest the contents of disclosed document number 67.

...

HIS HONOUR: So, in this particular application, the order will be that the fourth defendant have summary judgment against the plaintiff pursuant to rule 293 on the plaintiff's claim with costs of the proceedings which are to be assessed on the standard basis until 31st of December 2002 and on the indemnity basis from the 1st of January 2003.

I ought to observe that the assessment is likely to be an unusually difficult job for the Registrar. He or she is likely to be attempting to dissect out the costs of particular work which ought to be allocated against the fourth defendant as opposed to the third defendant. It remains to be seen how  work, if any, which was done only once, will be dealt with.

...

HIS HONOUR: For purposes of rule 686, those costs exclude any costs ordered and assessed or fixed in the Magistrates Court; they include the costs of the present application.