A & K Barham Enterprises Pty Ltd v Tweddle
[2005] QDC 329
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- A & K Barham Enterprises Pty Ltd v Tweddle[2005] QDC 329
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A & K Barham Enterprises Pty Ltd v Tweddle[2005] QDC 329
A & K Barham Enterprises Pty Ltd v Tweddle[2005] QDC 329
DISTRICT COURT OF QUEENSLAND |
|
CITATION: A & K Barham Enterprises Pty Ltd v Tweddle and Ors [2005] QDC 329
PARTIES:
A & K BARHAM ENTERPRISES PTY LTD | Plaintiff |
v
GARY JAMES TWEDDLE | First Defendant |
AND
DES DAVIES & ASSOCIATES PTY LTD | Second Defendant |
AND
DES DAVIES | Third Defendant |
AND
BRIEN WILKINS trading as COASTLINE BUILDING APRPOVALS | Fourth Defendant |
FILE NO/S: Mackay D64/2004
DIVISION:
PROCEEDING: Application
ORIGINATING COURT: District Court, Mackay
DELIVERED ON: 28 September 2005
DELIVERED AT: Mackay
HEARING DATE: 28 September2005
JUDGE: McGill DCJ
ORDER: Application dismissed with costs
CATCHWORDS:
COSTS – Compromise agreement – costs to be assessed – whether appropriate later to certify for a higher account under item 27 of scale
COSTS – Scale – certification for higher than ordinary limit for item 27 of District Court scale – whether appropriate – whether precluded by compromise agreement
UCPR Schedule 2 Part 2 Item 27(3)
COUNSEL: | p. Arthur (solicitor) for the plaintiff applicant C. Muir for the defendant respondent |
SOLICITORS: |
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DISTRICT COURT |
|
CIVIL JURISDICTION
JUDGE MCGILL SC
A & K BARHAM ENTERPRISES PTY LTD | Applicant (Plaintiff) |
and
GARY JAMES TWEDDLE | Respondent (First Defendant) |
and
DES DAVIES & ASSOCIATES PTY LTD | Second Defendant |
and
DES DAVIES | Third Defendant |
and
BRIEN WILKINS TRADING AS COASTLINE BUILDING APPROVALS | Fourth Defendant |
MACKAY
..DATE 28/09/2005
ORDER
HIS HONOUR: This is an application under item 27 of the District Court Scale, which was in force at the time, for me to certify to the Registrar that the Registrar may allow a higher amount than the limit specified in the scale item that the Registrar considers proper in the circumstances for the matters covered by item 27 of the scale. That item covered instructions for brief to counsel, including all attendances on and correspondence with the party and the party's witnesses and all necessary perusal and work in relation to preparation for hearing.
The maximum amount on the face of the scale at the relevant time was $3,437. The item makes provision that if, because of special circumstances, a party considers that the maximum allowance is not enough for the work actually done, the party may apply for the trial Judge, at or after the trial, to certify to the Registrar that the Registrar may allow a higher amount.
The reference to “special circumstances,” as the item is phrased, appears to be something which depends on the state of mind of the party making the application, but I think it should be interpreted as a requirement that would have to be satisfied in the mind of the trial Judge before it will be appropriate to certify for the Registrar to allow a higher amount under that provision in the item in the scale.
Happily, this item has now been swept away in the revision of the District Court Cost Scales. It was notoriously inadequate, as I have pointed out, for ex ampie, in McCoombes v. Curragh Queensland Mining Ltd [2001] QDC 142 and Henley v. State of Queensland [2005] QDC 94. However, the position is it was then in place.
This matter was commenced in the Commercial and Consumer Tribunal but was subsequently transferred to the District Court. It was initially in the Court at Mackay but on 7 December 2004 the Chief Judge ordered that it be transferred to Brisbane and listed it for trial for four days from 14 February 2005 in Brisbane. Her Honour made orders for disclosure of experts' reports and for the preparation of a Scott Schedule. The Scott Schedule was duly prepared and ultimately, as completed by the first defendant, was 10 pages in length and contained 20 items. Some of those items seem to be fairly straight forward and to have a building dispute listed for trial for four days suggests that as building disputes go, it was not a particularly large one.
On the other hand, a four-day civil trial in the District Court is a good deal larger than the average District Court trial which, even last year - which is the last year for which I have seen figures - the average of the District Court trials set down on the callover list was less than two days. So it is a relatively long trial by the standards of the District Court, but perhaps not necessarily by the standards of a building case. Building cases, however, as trials go, are relatively complicated and technical. There is evidence that the preparation involved expert engineering qualities, quantity surveying and accounting evidence and many hours of work conferring with these witnesses and the directors of the plaintiff; that bundles of plans and other documents, amounting to 1,450 pages, were prepared for tendering and a trial brief to counsel comprised 972 pages of documents.
In the light of all that, it was fortunate for me, perhaps, that when the matter was called on on the trial date before me I was told that it had been settled. I made, by consent, an order which was consistent with the settlement agreement that gave effect to the relevant parts of it, which included an order that the first defendant pay the plaintiff's costs of the action to be assessed on a standard basis under the District Court Scale of Costs where the amount recovered is in excess of $50,000, such costs to include costs as between the plaintiff and the first defendant as incurred by the plaintiff in the Consumer and Commercial Tribunal proceedings. The trial of the action was otherwise adjourned to a date to be fixed.
The plaintiff has now applied for the certification. The only other matter that I perhaps could mention is that the plaintiff's solicitors have been advised by costs consultants that the Registrar would be likely to allow an amount of approximately $18, 000 under item 27, provided that I certify.
On behalf of the first defendant it was submitted first that I could not certify because I was not the trial Judge for the purposes of item 27, since the matter did not proceed to trial. However, the matter was listed for trial before me and came on before me as a trial Judge, and I think that if the application had been made there and then, or if the application could properly be made subject to the terms of the settlement between the parties, then I would be the trial Judge for the purposes of item 27 even though the trial did not actually run before me and I did not give a judgment.
I think it is sufficient, to satisfy the requirements of item 27 in that respect, that the trial was listed for trial before me and was called on for trial before me. From that moment at least I became the trial Judge for that trial.
The next submission was that for the plaintiff now to seek this certification would be, in effect, to go outside or to seek to vary the terms of the settlement since the settlement between the parties did not provide for any such certification, nor did it reserve leave to the plaintiff to apply for such certification to me. It seems to me that there is some substance in this.
It was submitted on behalf of the plaintiff that what was agreed, and the order that was made by agreement, was for the first defendant to pay the costs assessed on a standard basis under the District Court Scale, and that since the provision for the certification for a higher amount was a provision contained in the District Court Scale, the plaintiff retained the right to apply for that certification consistently with that order. The argument, I suppose, could have been that in respect of various matters where the Registrar has a discretion as to the amount being allowed, it remained open to the plaintiff, pursuant to the terms of that order, and consistently with the settlement agreement, to argue for a higher amount rather than a lower amount.
On the other hand, in circumstances where there is a specific power in the Court to take a step which will result in the larger amount being payable under the scale than would otherwise be the case, it seems to me that the ordinary understanding of an order for costs assessed on the standard basis under the District Court Scale would not include the making of such a certification by a Judge. This, I suppose, is essentially a question of interpreting the settlement agreement, and particularly what follows from the fact that the agreement provided for an order for costs by consent in the terms that I have indicated, but I think that the natural meaning of that order and the objective meaning of that, whatever the parties' private intentions may have been, is that the costs would be assessed in accordance with the scale as it stood, and without any particular orders made by a Court to vary the operation of the scale.
There is, perhaps, some analogy with the situation which I came across once before where there had been an offer to settle, which was accepted, for a sum of $50,000 in relation to a District Court action. The offer was for $50,000 plus costs to be assessed but did not specify the scale on which the costs were to be assessed. The offer was accepted but it was then submitted, and it followed in accordance with the rules, that costs were to be assessed on the Magistrates Court Scale. An application was then brought before me seeking an order that the costs be assessed on the District Court scale.
There is a power to make such an order under the rules but in circumstances where there had been an offer to pay costs which had certain consequences, which offer was then accepted, it seemed to me that it would be inconsistent with the terms of the agreement between the parties produced by the acceptance of that offer to allow costs other than in accordance with the ordinary operation of the rules. The situation, I think, is similar here by analogy. I think the correct objective interpretation of what the parties agreed to was costs to be assessed on the standard basis under the scale in the ordinary way and without any special order by a Judge varying the operation of that scale.
I think that if the plaintiff had wanted to obtain, or reserve the right to seek to obtain, certification for a large amount of costs under item 27 this is something which should have been raised at the time of the settlement agreement. It seems to me that, in substance, by making this application the plaintiff is really seeking to vary the settlement agreement and in those circumstances the discretion should not be exercised in favour of the plaintiff.
I should say that if I were not of the view that the discretion should be precluded because it was, in substance, an attempt to vary the settlement agreement between the parties, on the material before me - and bearing in mind the approach that I have indicated in the matters referred to and in Dale v. Nichols Constructions Pty Ltd [2004] QDC 26 - I consider that there has been enough shown to amount to special circumstances justifying a certification in the present case. However, for the reasons that I have given, I will not certify and the application is therefore dismissed.
...
HIS HONOUR: The application is dismissed with costs.
...
HIS HONOUR: Costs will be assessed on the basis that the amount recoverable is on the District Court Scale where the amount recoverable is in excess of $50,000.
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