Wade Sawmill Pty Ltd v Colenden Pty Limited
[2007] QDC 156
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Wade Sawmill Pty Ltd v Colenden Pty Limited[2007] QDC 156
- Add to List
Wade Sawmill Pty Ltd v Colenden Pty Limited[2007] QDC 156
Wade Sawmill Pty Ltd v Colenden Pty Limited[2007] QDC 156
DISTRICT COURT OF QUEENSLAND
CITATION: | Wade Sawmill Pty Ltd v Colenden Pty Limited t/as Pilks Pine [2007] QDC 156 |
PARTIES: | WADE SAWMILL PTY LTD Plaintiff v COLENDEN PTY LIMITED t/as PILKS PINE Defendant |
FILE NO/S: | BD 4174/05 |
DIVISION: | Civil Jurisdiction |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 7 June 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5.10.06; 6.10.06; 23.1.07; 24.1.07. |
JUDGE: | O'Sullivan DCJ |
ORDER: | Orders made in accordance with paragraph [24] of Reasons |
CATCHWORDS: | Detinue; appropriate Orders; value of chattel; costs of repairs; indemnity costs. General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 1 WLR 644 |
COUNSEL: | Mr Myers for the plaintiff Mr Webb for the defendant |
SOLICITORS: | Carswell & Co for the plaintiff MBT lawyers for the defendant |
- [1]On 27 April 2007 I delivered Reasons for Judgment in this matter. The relevant findings of fact are accurately stated in paragraphs 1-7 of the initial submissions of Counsel for the defendant. In those Reasons, I invited submissions as to the appropriate orders and I have received three sets of submissions from both Counsel.
The proposed Orders
- [2]It was agreed that the most relevant judgment on the form of the appropriate order is General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 1 WLR 644, at 650. Lord Diplock referred to the judgment being in one of three different forms:
- (1)for the value of the chattel as assessed and damages for its detention; or
- (2)for return of the chattel or recovery of its value as assessed and damages for its detention; or
- (3)for return of the chattel and damages for its detention.
- [3]Counsel for the defendant submits that judgment in the third form, although unusual, is the appropriate one. Counsel for the plaintiff submits that judgment in the second form is appropriate.
- [4]Both Counsel have given me draft orders. Those drafts are similar in that they both contain an order for return of the Bezner and payment of the sum of $31,483.93, but they differ in that Counsel for the plaintiff submits that the plaintiff ought to pay interest to the defendant ‘to be assessed on that sum from the date on which the plaintiff recovers possession of the Log Sizer until payment of that sum,’ while Counsel for the defendant submits that interest should be ‘pursuant to s 47 of the Supreme Court Act 1995, $8,058.20.’ Further, Counsel for the plaintiff submits that there should be an alternative order for judgment in the sum of $88,561.07, together with interest on that sum from 12 July 2004 to the date of payment [the sum of $88,561.07 is calculated on the basis of $120,000 value of the Log Sizer as assessed by me in paragraph 134 of Reasons, less the cost of the repairs undertaken by the defendant.]
- [5]Counsel for the plaintiff seeks the plaintiff’s costs of and incidental to the action to be assessed on the standard basis. Counsel for the defendant seeks the defendant’s costs either:
- (a)on an indemnity basis or
(b)(i) up to 2 November 2005 on a standard basis in accordance with the District Court scale;
(ii) thereafter from 3 November 2005 on an indemnity basis.
- [6]The differences between the proposed orders are:
- (a)whether the plaintiff is entitled to an order for the defendant to pay the value of the Bezner rather than the defendant to return the Bezner, such value to be assessed;
- (b)the question of indemnity costs.
The valuation of the Bezner
- [7]Section 25 of the Supreme Court Act (1995) includes the following:-
‘The court or a Judge shall have the power if they or the Judge see fit to do so upon the application of the plaintiff in any action for the detention of any chattel to order that execution shall issue for the return of the chattel detained without giving the defendant the option of retaining such chattel upon paying the value assessed and if the said chattel cannot be found and unless the Court or a Judge shall otherwise order the Sheriff shall distrain the defendant …’
- [8]At paragraph 19 of his initial submissions, Counsel for the defendant referred to instructions from the defendant to abandon any entitlement to the value of the infeed and outfeed decks, safety equipment and new guards ‘on the basis the order will be as contemplated in paragraph 141 of the Reasons for Judgment, that is, a delivery of the Bezner, as per order submitted.’ The ‘order submitted’ refers to delivery up of the Bezner for collection by the plaintiff from the defendant’s premises at the plaintiff’s expense.
- [9]Counsel for the plaintiff submits that I should make an order pursuant to s 42 of the Supreme Court Act 1995 for the Prothonotary (Master) to determine the value of these items.
Whose election?
- [10]An essential issue which is relevant to the question of the appropriate order is whether there is an election (by the plaintiff, or the defendant, or neither) for payment of a sum rather than delivery of the chattel.
- [11]Counsel for the plaintiff submits that the plaintiff has the election for return of the Bezner or judgment in a sum, and relies on s 25 of the Supreme Court Act (1995) (as quoted above).
- [12]Counsel for the defendant refers to General and Finance Facilities Ltd (supra), and Gollan v Nugent (1988) 166 CLR 18, at 27, and submits that the option of choosing to pay the value of the goods rather than giving them up was an option given to the defendant not the plaintiff. He submits that the defendant has always made it clear that it did not wish to retain the goods and pay their value; the defendant retained the goods in order to protect itself for payment of the cost of repairs.
- [13]Counsel for the defendant submits that on the pleadings the issue in the case has at all times been that the plaintiff asserted it was entitled to a return of the Bezner and the defendant asserted that it had a lien and the plaintiff was not entitled to return of the Bezner without payment of the rebated costs. He submits: ‘that is, effectively, if not precisely, what the court has found.’ I consider that there is a significant difference between the defendant’s position and the findings in my Reasons for Judgment, and especially as to the existence of a lien [whether the defendant was entitled to retain the Bezner awaiting payment of costs of repairs because of a contractual, common law or equitable lien], and whether the defendant was obliged at law to pay an assessed value of the Log Sizer.
- [14]Paragraph 135 of the Reasons for Judgment states:
“Counsel for the defendant referred to McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303. I find that the Bezner is sufficiently special to warrant its recovery from the defendant.”
I do not agree with Counsel for the defendant that it follows from this that the plaintiff was seeking, and I granted, an order in the third form in General and Finance Facilities Ltd (supra).
- [15]I consider that the plaintiff is entitled to an order for delivery up of the Log Sizer subject to payment of the rebated costs of repairs. I agree with the orders set out in paragraphs 1, 2 and 3 of the draft orders of Counsel for the defendant.
Interest
- [16]Counsel for the plaintiff submits that interest should not run until the figure is obtained for the value of the items fitted by the defendant, and then only if and when the plaintiff elects to take delivery of the Log Sizer with its enhancements. In the event that the plaintiff elects to accept the assessed value of the Log Sizer after allowance for improvements, it would be only the plaintiff which has an entitlement to interest on the amount that is found to be due to it.
Costs
- [17]On the question of costs, Counsel for the defendant referred me to the Offer to Settle of 2 November 2005. That Offer was for the defendant to deliver up possession of the Bezner, each party discontinue, and each party pay their own costs. He submits that the judgment results in a position which is better for the defendant, namely, that although it must deliver up possession it is entitled to payment of the sum of money concerning the cost of repairs and improvements effected by the defendant.
- [18]I agree with Counsel for the plaintiff that the offers made by the defendant did not include a reference to payment of the value of the Log Sizer. Thus, offers pursuant to Part 5 of the Uniform Civil Procedure Rules 1999 do not obtain the benefit of that Part.
- [19]So far as indemnity costs are concerned, Counsel for the defendant referred me to a number of authorities, including Emanuel Management Pty Ltd (In liquidation) & Ors v Foster’s Brewing Group Ltd & Ors and Coopers and Lybrand & Ors [2003] QSC 299, Leichhardt Municipal Council v Green (2004) NSWCA 341, Anderson v AON Risk Services Australia Ltd & Anor [2004] QSC 180, and Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 46 FCR 225. These authorities make it plain that the discretion to award indemnity costs is wide, and the categories are not closed. It is important to look at all the circumstances of the particular case. I consider one of the relevant factors in this case is that the defendant did not have a lien as it asserted, and that if it wished to retain the Bezner then it should have offered to pay the assessed value of the Bezner.
- [20]So far as costs generally are concerned, the findings set out in the Reasons for Judgment disclose that the plaintiff has succeeded on some issues, and the defendant on others. The plaintiff has not succeeded in quantifying its claim for damages for detention. The defendant has not succeeded in its claim of a contractual, common law or equitable lien. I consider that the appropriate order is for the defendant to pay half of the plaintiff’s costs of and incidental to the action to be assessed on the standard basis.
Summary
- [21]I make the following Orders:
- The Plaintiff pay to the Defendant the sum of $31,483.93 plus interest pursuant to Section 47 of the Supreme Court Act 1995 of $8,953.48, within 28 days of the date of these orders.
- Within 14 days of the said payment in order 1, the Defendant deliver up the Bezner Log Sizer Model RF50-150 Serial Number 8435 (“the log sizer”) to the plaintiff at the defendant’s premises at Cavanagh’s Road, Lowanna, New South Wales.
- The Plaintiff shall do all acts and things necessary to collect or effect collection of the Log Sizer from the Defendant’s said premises at its sole expense.
- The Defendant pay half of the Plaintiff’s costs of and incidental to the action to be assessed on the standard basis.