Griffiths Powerline Maintenance v IDS Consulting Services Pty Ltd
[2006] QDC 71
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- Unreported Judgment
- Griffiths Powerline Maintenance v IDS Consulting Services Pty Ltd[2006] QDC 71
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Griffiths Powerline Maintenance v IDS Consulting Services Pty Ltd[2006] QDC 71
Griffiths Powerline Maintenance v IDS Consulting Services Pty Ltd[2006] QDC 71
DISTRICT COURT OF QUEENSLAND
CITATION: | Griffiths Powerline Maintenance v IDS Consulting Services Pty Ltd [2006] QDC 071 and IDS Consulting Services Pty Ltd v Griffiths Powerline Maintenance Pty Ltd [2006] QDC 071 |
PARTIES: | GRIFFITHS POWERLINE MAINTENANCE PTY LTD (ACN 083 309 773) Plaintiff and IDS CONSULTING SERVICES PTY LTD (ACN 088 281 672) Defendant And IDS CONSULTING SERVICES PTY LTD (ACN 088 281 672) Plaintiff and GRIFFITHS POWERLINE MAINTENANCE PTY LTD (ACN 083 309 773) Defendant |
FILE NO/S: | BD798 of 2003 and BD1431 of 2003 |
DIVISION: |
|
PROCEEDING: | Written Submissions |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 29 March 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Written Submissions |
JUDGE: | SAMIOS DCJ |
ORDER: |
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CATCHWORDS: | Procedure – Costs – Order for costs on the indemnity basis Anderson v AON Risk Services Australia Ltd and Anor (2004) QSC 180 |
COUNSEL: | Mr Sweeney (for Griffiths Powerline Maintenance Pty Ltd) Mr Crowe SC with Mr Brennan (for IDS Consulting Services Pty Ltd) |
SOLICITORS: | Paul Everingham and Co (for Griffiths Powerline Maintenance Pty Ltd) Irish Bentley Lawyers (for IDS Consulting Services Pty Ltd) |
- [2]I delivered reasons in these proceedings on 15 March 2006.
- [3]Through oversight interest on the judgment sum was not awarded, though sought on the pleadings. There is no objection to the award of interest. Therefore I order interest at the rate of 10 per cent per annum on the sum of $40,938.11 from 13 February 2003 to 15 March 2006, 1,126 days or 3.08 years which is a sum of $12,608.95
- [4]On the question of costs IDS made an offer to settle to GPM in the GPM proceedings to settle “the entirety of these proceedings” by paying GPM $26,000 (referred to as the “settlement sum”) on the condition that the settlement sum be set off against any judgment delivered (or settlement reached) between the parties in the IDS proceedings and to pay GPM’s costs to be assessed or as agreed. In the IDS proceedings IDS made an offer to settle to GPM to settle “the entirety of these proceedings” by GPM paying IDS the sum of $86,000 and paying IDS’s costs to be assessed or as agreed. Both these offers are dated 22 December 2003 and were served on 23 December 2003.
- [5]Except that in the offer to settle in the GPM proceedings there is reference to the IDS proceedings the expression “the entirety of these proceedings” is not defined. GPM submits these offers must be regarded as an offer to settle both the GPM proceedings and the IDS proceedings. Further, the offers have to be looked at together, as the $26,000 plus costs offer was not capable of stand alone acceptance, but was only subject to set off against GPM’s payment of $86,000. The two offers were in effect a net offer to accept a payment to IDS of $60,000 plus costs. Further, GPM submits as I gave only one judgment in favour of IDS in the IDS proceedings and did not give judgment in favour of GPM in the GPM proceedings it cannot be said that GPM obtained a judgment that is not more favourable to GPM than IDS’s offer to settle.
- [6]In my opinion these offers to settle are in the circumstance independent of each other. In my opinion “the entirety of the proceedings” is to be understood as the proceedings in which the offer was made. In my opinion one or both offers were capable of acceptance.
- [7]In my opinion even though I did not give judgment in favour of GPM in the GPM proceedings the decision I made finding the sum of $22,833.89 was due and payable by IDS to GPM is an order (see r4 and Schedule 4 UCPR). I would give effect to r 361 UCPR as if the order I made were a judgment.
- [8]Therefore, in the GPM proceedings I hold the offer to settle dated 22 December 2003 is effective. Unless a party shows another order for costs is appropriate in the circumstances I must order IDS to pay GPM’s costs, calculated on the standard basis up to and including the day of service of the offer to settle and order GPM to pay IDS’s costs, calculated on the standard basis after the day of service of the offer to settle (r. 361(2) UCPR).
- [9]Regarding the offer to settle in the IDS proceedings dated 22 December 2003 IDS obtained a judgment that was less favourable than the offer to settle. That is, the offer to settle was an offer to accept $86,000 plus costs to be assessed or as agreed. The judgment in the IDS proceedings in favour of IDS was for the sum of $40,938.11. Even allowing for the interest which I have now allowed on the judgment the total is less favourable than the offer to settle. Even if the set off were disregarded a judgment for the sum of $63,772 and interest thereon would not exceed the sum offered in the offer to settle. Therefore, this offer to settle does not oblige me to order GPM to pay IDS’s costs calculated on the indemnity basis.
- [10]However, IDS made to GPM an offer to settle dated 29 July 2004, whereby IDS offered to accept from GPM a payment of the sum of $30,000 and to bear its own costs to settle both proceedings. In my opinion, this offer to settle does entitle IDS to an order for costs on the indemnity basis in the IDS proceedings unless GPM shows another order for costs is appropriate in the circumstances (r 360(1) UCPR).
- [11]I do not accept another order for costs is appropriate in the circumstances. IDS did abandon an agency allegation during the hearing of the proceedings. However, in my opinion the agency allegation was an insignificant part of the proceedings overall and occupied very little of the duration of the hearing. The costs IDS should not recover for this allegation are best determined by the Registrar considering the amended pleadings that relate to the allegation. Otherwise very little was said about the agency allegation during the nine days of the hearing. I do not accept some percentage of the costs can be determined regarding the abandonment of this allegation.
- [12]In my opinion the proceedings involved important and difficult issues of credit. Further, the parties legal advisors did much outside the hearing to reduce the relevant documents to a manageable number and to reduce the claims and concessions to agreed sums on the many items of claim one against the other.
- [13]In the GPM proceedings I am satisfied another order for costs is appropriate in the circumstances. These circumstances are that in my opinion GPM failed in the proceedings. The sum I found to be due from IDS to GPM in the GPM proceedings was accepted by IDS to be due to GPM. The balance was what was in issue and as to that GPM failed. In light of my findings in the IDS proceedings the sum I found to be due by IDS to GPM in the proceedings was not payable after IDS’s set off.
- [14]In Anderson v AON Risk Services Australia Ltd and Anor (2004) QSC 180, a defendant made offers to settle which were not bettered at trial. The Plaintiff failed in the proceedings. His Honour McMurdo J concluded the Plaintiff’s rejection of one of the offers was unreasonable and held the defendant entitled to indemnity costs.
- [15]Further, GPM by its director proffered to a bank, a document known to be false and relied upon the very same document to claim twice in the GPM proceedings an entitlement to remuneration he knew was wrong to do. Notwithstanding these allegations and other features of the evidence referred to in my reasons for judgment GPM pursued its claim against IDS in the GPM proceedings. In my opinion GPM unreasonably rejected the offer to settle.
- [16]Therefore, in the GPM proceedings the other order for costs I make is an order that GPM pay IDS’s costs up to and including 23 December 2003 on the standard basis and GPM pay IDS’s costs after 23 December 2003 on the indemnity basis.
- [17]The bank guarantee ought to be discharged.
- [18]In my opinion the costs of both senior and junior Counsel for IDS were reasonably incurred in the proceedings because of the substantial documentation and issues of credit and length of the hearing. Further, I certify that the Registrar may allow a higher amount in respect of Item 27 because I accept there was substantial documentation and issues of credit involved in the lengthy proceedings. That is, I accept here there are special circumstances.
- [19]Therefore I order: -
- (a)In the GPM proceedings GPM pay IDS’s costs up to and including 23 December 2003 on the standard basis and after 23 December 2003 GPM pay IDS’s costs on the indemnity basis;
- (b)In the IDS proceedings GPM pay IDS’s costs on the indemnity basis;
- (c)IDS’s security being a bank guarantee filed in the court on 18.04.2005 be discharged;
- (d)I certify the costs of both senior and junior counsel for IDS were reasonably incurred by IDS;
- (e)I certify to the Registrar that the Registrar may allow for IDS a higher amount that the Registrar considers appropriate in the circumstances in respect of Item 27 of Part 2, schedule 2 of the Rules;
- (f)GPM pay IDS interest in the amount of $12,608.95 on the judgment in the IDS proceedings;