Hazpro Property Ltd v Goddard Nominees Pty Limited
[2005] QDC 67
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- Hazpro Property Ltd v Goddard Nominees Pty Limited[2005] QDC 67
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Hazpro Property Ltd v Goddard Nominees Pty Limited[2005] QDC 67
Hazpro Property Ltd v Goddard Nominees Pty Limited[2005] QDC 67
DISTRICT COURT OF QUEENSLAND
CITATION: | Hazpro Property Ltd and Ors v Goddard Nominees Pty Limited [2005] QDC 067 |
PARTIES: | HAZPRO PROPERTY LTD ACN 081 442 177 |
FILE NO/S: | 514/04 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | District Court, Southport |
DELIVERED ON: | 4 April 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 February 2005, submissions by letter of 24 March 2005 and email of 4 April 2005 |
JUDGE: | Robin QC DCJ |
ORDER: | Orders on appeal expanded to deal with costs thrown away by adjournment of Magistrates Court trial at which the judgment set aside on appeal was granted |
CATCHWORDS: | Reopening of appeal from Magistrate (before order was taken out) to deal with costs thrown away by adjournment of trial of a claim which the Magistrate was held to have wrongly refused. Cases cited: Bailey v Marinoff (1971) 125 CLR 529 KGK Constructions Pty Ltd v East Coast Earthmoving Pty Ltd [1985] 2 Qd R 13 |
COUNSEL: | Mr Cronin for Appellants/Defendants Mr Anderson for Respondent/Plaintiff |
SOLICITORS: | Primrose Couper Cronin Rudkin for the Appellants/Defendants Adamson Bernays Kyle & Jones for the Plaintiff/Respondent |
- [1]On 25 February 2005 (see [2005] QDC 046) the Appellant/Defendants’ appeal against a judgment given against them by a Magistrate was allowed (they having not participated in the trial) after the Magistrate’s refusal of an adjournment; orders made by the Magistrate for the principal judgment sum, interest and costs were set aside, the claim being returned to the Magistrates Court for retrial. The Appellant/Defendants were ordered to pay the cost of the appeal.
- [2]By letter faxed to my Associate after 4 pm on the Thursday before Easter (24 March), the Respondent/Plaintiff’s solicitors seek to revisit the matter. The letter states:
“Mr Anderson who appeared for the Respondent has alerted Mr Cronin who appeared for the Appellants to this correspondence and we understand no objection is taken to it and that the respondents wish to respond in due course.
At the conclusion of the appeal and despite the orders made, his Honour’s attention was not directed to the obvious desirability of making orders concerning the costs of the hearing before the Learned Magistrate at trial and otherwise as to the future conduct of those proceedings. At present, no order has been made by his Honour formally setting aside the orders below and dealing with consequential issues and it is to that end that we wish to address these further submissions. We ask that his Honour take them into account before making final orders on the appeal. We do not wish to be heard orally in respect of them.”
Presumably, “respondents” should refer to “Appellants”.
- [3]While I had assumed “final orders” had been made, no formal order has been taken out, according to the letter. On this basis, I think the court may revisit the matter. The stage has not yet been reached where it is necessary to seek to invoke the “slip rule” (UCPR r 388). Other rules are available, such as r 668, which was usefully expounded by the Full Court by reference to its predecessor, RSC Order 45 in KGK Constructions Pty Ltd v East Coast Earthmoving Pty Ltd [1985] 2 Qd R 13; reference was made to Bailey v Marinoff (1971) 125 CLR 529, from which the significance of the order’s being or not being taken out is clear.
- [4]The letter advances submissions as follows:
The effect of his Honour’s order on the appeal is that the application to adjourn the trial ought to have been allowed. Consistent however with his Honour’s order that the Appellant pay the Respondent’s costs of the appeal on an indemnity basis, it would appear appropriate that the Respondent also have its costs thrown away by reason of the adjournment. Those costs can be quantified by reference to the costs schedule relied upon by his Worship in making the orders appealed against: a document that is attached to this correspondence.
The costs thrown away, it is respectfully submitted, amount to $2,242.40 (being 1/3 of the costs allowable for preparation for trial (Item 5 on the Magistrates Court Scale applicable at the time of the application - $958.40); counsel on a refresher basis (Item 6(g) - $866.00); and counsel on conference for two hours (Item 6(b) - $418.00)).
That the Respondent should have its costs thrown away is, with respect, self evident. A party requesting an adjournment on the first day of the trial would ordinarily be required to pay those costs.
In the circumstances, the Respondents submit that the appropriate orders to follow the appeal heard on 25 February are as follows:
- Appeal allowed;
- The Orders of the Magistrates Court at Southport made on 3 August 2004 be set aside;
- In lieu thereof it be ordered that:
- the trial be adjourned to a date to be fixed;
- the Defendants pay the Plaintiff’s costs thrown away by the adjournment, fixed in the amount of $2,242.40;
- In lieu thereof it be ordered that:
- The Appellants pay the Respondent’s costs of and incidental to this appeal on the indemnity basis.”
(The attachment shows a claim for costs of trial aggregating $8,734.30, which the Magistrate allowed almost in full.)
- [5]To date no submissions have been received from Mr Cronin. My strong inclination is to leave the final decision as to how the Plaintiff’s costs thrown away ought to be borne to the Magistrate who ultimately determines the claim. Accepting that Mr Anderson had argued very strongly that there was no defence, it remains a possibility that it will ultimately be determined that it is the claim which is hopeless. Questions might arise then as to whether the plaintiff should obtain any order for costs. The description of the Appellants as “a party requesting an adjournment on the first day of trial” fails to note that (albeit allegedly without their authority) the Appellants’ solicitor had made a formal application for the adjournment supported by material in the week before the trial was listed, which the Plaintiff understandably opposed – and successfully so. I can see no reason in principle why the Magistrate disposing of the claim would not have jurisdiction to deal with the costs of the adjourned trial. Any diffidence the Magistrate might have would presumably be dispelled by a clear intimation from this court that the costs issue was being reserved for consideration and disposition at the trial of the claim.
- [6]My Associate has been placed under some pressure by the author of the letter quoted from seeking a speedy decision from the court; he was given to understand that the reason is that the Respondent-Plaintiff’s solicitors are holding in their trust account the amount of the judgment, which the Appellants had paid before the appeal came on. The firm are concerned to know as soon as possible how the funds in trust may be dealt with. My Associate was given the impression that the Appellants are seeking repayment. Whether or not they are justified in so doing, the understanding at the hearing of the appeal was that the Appellants would be bringing proceedings (possibly by counterclaim) seeking an order for repayment. I am concerned that the Appellants appear to have changed stance. I think a practical approach to the situation would be represented by the Appellants providing security for the costs ordered to be paid by them in this court, while those costs remain to be assessed, and also (in the amount set out in the letter) for the costs claimed by the Respondent-Plaintiff as thrown away by the adjournment, their entitlement to enjoy which would be determined by the Magistrate at the retrial. Once ascertained, the Respondent-Plaintiff’s costs can be set off against any just demand the Appellant-Defendants may have against it.
- [7]The assumption that the Respondent-Plaintiff (as the solicitors) would retain a de facto security unless some order for repayment was obtained may be unjustified. There is no clear jurisdiction in the court to require a defendant to provide security, although there are doubtless special cases, such as when a Defendant is permitted to defend on a Summary judgment application. See Order 398(b). I think an appropriate condition could be imposed upon the adjournment, if not on the setting aside of the judgment. On the assumption that moneys paid to satisfy the judgment are to be repaid, appropriate orders in this court would be:
- Appeal allowed;
- The Orders of the Magistrates Court at Southport made on 3 August 2004 are set aside;
and in lieu thereof it is ordered that: the trial be adjourned to a date to be fixed; on condition that the Defendants pay into court in the Magistrates Court as security for the Plaintiff’s claim for its costs thrown away by the adjournment, the amount of $2,242.40; and further provide similar (or other agreed) security for the costs mentioned in para 4 below;
- The Plaintiff’s claim for the abovementioned costs is reserved to the Magistrate who shall hear the trial.
- The Appellants pay the Respondent’s costs of and incidental to this appeal on the indemnity basis.
- Liberty to apply.
Apprised of the court’s attitude the parties may well cooperate to work out suitable practical arrangements.
- [8]Publication of the foregoing reasons was withheld to allow Mr Cronin time to obtain instructions and make written submissions. He has advised as follows by email today:
I have now been instructed that my client, the Appellants do not oppose the orders set out in the ABKJ letter of 24 March 2005 provided the Appellants do not have to pay any costs associated with the submission to amend the order of 25 February 2005 of Judge Robin.
That represents a practical approach, which renders otiose my consideration of the matter to this point. Without the necessity of appearances, orders will be made in court in Brisbane today as per 1, 2, 3, and 4 in paragraph [4] above with the addition to 4 of “limited to 25 February 2005 and before and the costs of taking out this order.”