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Harris & Maher v Prigg (No. 2)[2008] QDC 279

Harris & Maher v Prigg (No. 2)[2008] QDC 279

DISTRICT COURT OF QUEENSLAND

CITATION:

Harris & Maher  v Prigg (No 2) [2008] QDC 279

PARTIES:

MICHAEL RICHMOND HARRIS and

RODNEY JOSEPH MAHER (Plaintiffs)

AND

GARRY LESLIE PRIGG

 (Defendant)

FILE NOS:

D100/08

DIVISION:

District Court of Queensland, Maroochydore

PROCEEDING:

Civil hearing

ORIGINATING COURT:

Maroochydore District Court

DELIVERED ON:

28.11.2008

DELIVERED AT:

Maroochydore

HEARING DATE:

24.10.2008

JUDGE:

Judge J.M. Robertson

ORDER:

     On 26 April 2007 the Plaintiffs wrongfully terminated the Contract dated 23 March 2007 (“the Contract”) between the Plaintiffs as Buyer and the Defendant as Seller in relation to property described as Lot 18 on SP121164 being the whole of the property comprised in Title reference 50277604.

          The Defendant validly terminated the Contract on 29 January 2008.

Order that the sum of $40,000 paid into Court (and any accretions thereon), representing the deposit paid by the Plaintiffs pursuant to the terms of the Contract, be paid out of Court to the Defendant.

The Plaintiffs pay to the Defendant the sum of $6077.25 by way of interest pursuant to s. 47 Supreme Court Act 1995 (Qld).

The Plaintiffs pay the Defendant’s costs of and incidental to the claim and counterclaim (including reserved costs) on the standard basis.

CATCHWORDS:

COSTS: Whether successful defendant should have the benefit of the usual order, where plaintiff commenced proceedings in Magistrates Court, whether defendant delayed proceedings unnecessarily, whether defendant’s conduct added unnecessarily to costs of trial.

COUNSEL:

Ms. Anderson for the Plaintiffs

Mr. Nevison for the Defendant

SOLICITORS:

Oric Legal for the Plaintiffs

Ferguson Cannon Lawyers for the Defendant

  1. [1]
    On the 6.11. 2008, I dismissed the Plaintiffs claim and gave judgment for the defendant on its counter-claim. At my direction, a copy of my reasons in draft form was forwarded to the parties prior to the 31.10.08, to enable them to make written submissions on costs and orders. It was then my intention to give final judgment on that day. Mr. Nevison made a written submission on 29th October 2008. When the matter was called on on the 31st October, Ms. Mumford appeared for the plaintiffs and applied for an adjournment of the costs hearing as her counsel Ms. Anderson was involved in another trial in Rockhampton. The costs hearing was adjourned to the 6.11.08. At that time, Ms. Anderson appeared and made written and oral submissions and Mr. Nevison appeared by telephone and made oral submissions in reply.
  1. [2]
    The defendant applies for costs as the successful party. As Mr. Nevison submits as his client has been wholly successful in resisting the claim by the plaintiffs and on his counter-claim, costs should follow the event: r 681 Uniform Civil Procedure Rules.
  1. [3]
    The plaintiffs submission, articulated by Ms. Anderson, is that for a variety of reasons, not only should the successful defendant not get his costs, but the plaintiff should be entitled to some costs reserved during the course of the proceedings. Her submission is predicated upon an affidavit of Ms. Mumford sworn 5.11.08 and filed by leave on 6.11.08.

The history of the claim

  1. [4]
    The claim was filed in the Magistrates Court at Mackay on the 29th June 2007. The claim sought as part of the plaintiff’s prayer for relief a declaration that the contract was validly terminated.
  1. [5]
    The correspondence attached to Ms. Mumford’s affidavit discloses that the defendant’s solicitors did not hold instructions to accept service, and complaint is made that it was necessary for the plaintiff’s solicitors to arrange service of Mr. Prigg in Victoria. In due course, he was served but apparently not in compliance with the Service & Execution of Process Act 1992. On 8.8.07 Mr. Prigg’s present solicitors advised Oric Legal that they had instructions to accept service, which was then affected on or about 24 August 2007. Ferguson Cannon then briefed Mr. Wallace, however as he had been consulted by Ms. Mumford about the matter, Mr. Nevison was retained to advise and draft a defence.
  1. [6]
    On 24.9.07 Ms. Mumford informed Ferguson Cannon (inter alia):

“We advise that if your client does not have his Defence filed by close of business Wednesday 26 September 2007 we shall be taking steps towards seeking a default judgment.”

  1. [7]
    On 1.10.07, Ferguson Cannon filed a Conditional Notice of Intention to Defend on the ground that the Magistrates Court did not have jurisdiction to grant the declaratory relief sought by the Plaintiff pursuant to s. 4 of the Magistrates Courts Act 1921.
  1. [8]
    Under cover of a letter faxed to Oric Legal on 26.9.07, Ferguson Cannon enclosed a copy of the Conditional Notice and foreshadowed an application to set aside the claim and invited the plaintiffs to discontinue.
  1. [9]
    On 1.10.07 Oric Legal wrote to Ferguson Cannon in these terms:

“Would you confirm whether your client is disputing the jurisdiction of the Court to make a declaration that the Contract was validly terminated? If this is the case, would it satisfy your complaint if the Claim was formally amended to exclude our client’s claim for such a declaration?

We look forward to your urgent attention on this matter.”

  1. [10]
    Obviously by way of an implied admission that the defendants assertion as to want of jurisdiction was valid, the statement of claim was amended on 11 October 2007 to remove the claim for declaratory relief.
  1. [11]
    There is some dispute identified in Ms. Mumford’s affidavit as to when the Amended Statement of Claim was served on Ferguson Cannon. By reference to an affidavit of service filed 29.11.07, in support of an application for judgment in default of filing a defence, Ms. Mumford says it is the 16.10.07. In an affidavit sworn by Mr. Pattinson filed on 24.12.07 in support of an application by the defendant to set aside the default judgment entered on 29.11.07, he says the amended Statement of Claim was served on 5 November. Nothing turns on this.
  1. [12]
    As far as the file indicates, the next thing that happens is that on the 29 November 2007, the Plaintiffs applied for and obtained judgment on the ground that the Defendant had not filed a Defence. It is common ground that Oric Legal did not give Ferguson Cannon notice of its intention to apply for the default judgment.
  1. [13]
    What is clear both from Ms. Mumford’s affidavit and from Mr. Pattinson’s earlier affidavit is that in November the parties were negotiating on a without prejudice basis to resolve the matter.
  1. [14]
    As a consequence of r. 144(3), the defendant was obliged to apply to the Court for an order that the original proceeding had not been properly started for want of jurisdiction by the 15th October,  i.e. 14 days after the filing of the Conditional Notice to Defend. It did not so, therefore the conditional notice became unconditional (r. 144 (4)) and the defendant was obliged within 7 days to file a defence which it did not. This is why the plaintiffs were able to obtain default judgment on the 29th November.
  1. [15]
    On 5.11.07, Ferguson Cannon informed Oric Legal that in their opinion the claim was still not able to be determined by the Magistrates Court, and reiterated their instructions to make the application foreshadowed in their letter of the 26th September.
  1. [16]
    Mr. Pattinson’s affidavit filed 24.12.07, in paragraph 8, seems to imply that “without prejudice” negotiations continued into December. According to Ms. Mumford, a “without prejudice” offer made on 5.11.07 expired on the 20.11.07, and she therefore proceeded with the default judgment application without further notice to Ferguson Cannon. She concedes that on 29.11.07, i.e. the day default judgment was entered, she received a “without prejudice” fax from Ferguson Cannon containing a further “without prejudice” offer to settle which was open until 7 December. Clearly she did not then contact Mr. Pattinson to inform him that she had instructions to apply for default judgment that day.
  1. [17]
    When Mr. Pattinson filed his foreshadowed application to set aside the Plaintiffs claim for want of jurisdiction orders, he discovered that judgment by default had been entered. He had informed Oric Legal of his intention to so proceed in a facsimile of the 12th December. Ms. Mumford replied on the 14th December and advised Mr. Pattinson (inter alia) that default judgment had been entered. On 18.12.07 Mr. Pattinson wrote to Ms. Mumford in these terms:

“We are advised by the Registrar that Default Judgment was entered against our client on 29 November 2007. Given that our respective clients are attempting to negotiate a settlement and that our client had provided to you a copy of their proposed application, we are disappointed your client saw fit to request the Default Judgment.

Please provide a copy of the Default Judgment as soon as possible.

We anticipate our client will make immediate application to the Court to set aside the Default Judgment. In our opinion, there is little doubt the Court will set aside the Judgment as our client can easily satisfy three criteria required by the Court, namely:-

1.  There was no genuine reason that no defence was filed

2.  There is no delay in making the application (sic) set aside the Judgment; and

3.  Our client has real prospects of defending the claim.

In the circumstances, our client will be seeking costs of making the application set aside the Default Judgment. This and previous correspondence will be relied upon when the issue of costs arises.”

  1. [18]
    On 20.12.07, Mr. Pattinson forwarded to Oric Legal copies of an application and affidavit to set aside the default judgment, which was in fact filed on the 24.12.07. He invited Oric Legal to consent to the setting aside of the default judgment.
  1. [19]
    In due course, the parties consented to transfer the proceedings to the Maroochydore Magistrates Court. On 2.4.08, Ferguson Cannon filed an affidavit by Mr. Prigg (presumably in support of the application to set aside the default judgment) which annexed a copy of a proposed Defence and Counter-claim.
  1. [20]
    I have not been favoured with the associated correspondence but it is clear that eventually the parties agreed to orders to be made by the Magistrates Court on 7.4.08 in these terms:

“1.  The Judgment dated 29 November 2007 being set aside pursuant to Rule 290 of the Uniform Civil Procedure Rules 1999 (Qld).

  1. The Defendant’s application filed in the Mackay Registry on 13 December 2007 pursuant to Rule 16 of the Uniform Civil Procedure Rules 1999 (Qld) be dismissed.
  2. The Plaintiff’s Application filed in the Mackay Registry on 20 December 2007 pursuant to Rule 561 of the Uniform Civil Procedure Rules 1999 (Qld) be dismissed.
  3. Matter number M39 of 2008 be transferred to the District Court of Queensland, Maroochydore Registry.
  4. The Plaintiffs file a new Claim and Statement of Claim in the District Court of Queensland, Maroochydore Registry, within seven (7) days from the date of this Order.
  5. The Defendant file a Defence and Counter Claim in the District Court of Queensland, Maroochydore Registry within twenty-eight (28) days from the date of service of the new Claim and Statement of Claim referred to above in paragraph 5.
  6. Costs be reserved.”
  1. [21]
    In accordance with that order a claim and statement of claim was filed in this Court on 9.4.08 and a Defence and Counter-claim filed 9.5.08.
  1. [22]
    On the 16.6.08, Oric Legal forwarded a rule 444 letter to Ferguson Cannon relating to disclosure, which provoked a rule 445 response from Ferguson Cannon on 17 June 2008. In effect, the letter informed Oric Legal that an application to enforce disclosure was premature as time limits under the Rules had not expired. The defendant’s list was provided to Oric Legal on 26 June, however Mr. Pattinson disputed the relevance of documents relating to an apparent subsequent sale of Mr. Prigg’s unit to another purchaser. As far as I can tell from the material, that was not pursued.
  1. [23]
    Notices to Admit facts and documents were served on Ferguson Cannon under cover of letter dated 15 September 2008, and Ferguson Cannon provided a response on 30 September 2008. The defendant subsequently agreed to Oric Legal’s proposal that Ms. Eccles give evidence by telephone which I approved. As I have noted in my judgment, the trial proceeded on the basis of the documents and Ms. Eccles gave evidence by telephone and no issues arose as to credibility.

The Plaintiffs Costs Submission

  1. [24]
    It has been necessary for me to set out in some detail the history of the litigation to enable me to deal with the plaintiffs very extensive costs submissions.

(a) Costs of the default judgment

  1. [25]
    Ms. Anderson submits that her client should get their costs relating to the setting aside of the default judgment. I disagree with her submission that “where judgment regularly entered in default is set aside it will generally only be on terms that the defendant pays the costs”. The ancient authority upon which she relies namely Chalis v O'Brien [1956] QWN 39 must be read down in light of the more recent approach which is now governed by r. 290 Uniform Civil Procedure Rules. In Standen Operations Pty Ltd v The Black Dog Café (Holdings) Pty Ltd & Ors [2008] QDC 225 I summarised the principles thus:

“[7]Rule 290 is in these terms:

The Court may set aside or amend a judgment by default under this division, and any enforcement of it, on terms, including terms about costs and the giving of security, the court considers appropriate. The principles applicable in the exercise of the discretion to set aside a judgment entered in default of appearance are well known, and are summarised succinctly by Judge Wilson SC in Reid v Jensen [2002] QDC 247. The discretion is unfettered and the Court will consider primarily

  1. whether or not the defendant has given a satisfactory explanation for their failure to appear;
  2. whether or not there has been delay in making the application;
  3. whether or not the defendant has a prima facie defence on the merits to the claim on which the judgment is founded.

[8]In Trolani v Alfost Properties Pty Ltd [2002] QCA 251, McPherson JA (with whom White and Wilson JJ agreed) noted, by reference to Atkinson J’s judgment in Yankee Doodles Pty Ltd v Blemvale Pty Ltd (Unreported, SC. No. 134 of 1999);:

“…much less significance is now ascribed to delay than may have been the case at some times of the past.”

  1. [26]
    The so called ‘delay’ by the defendant leading up to the entry of default judgment has to be seen in light of the fact that he was represented by solicitors who were negotiating with the plaintiffs solicitors with a view to resolving the matter. In my view, it was entirely inappropriate for the plaintiffs solicitors to apply for default judgment without at least notifying Ferguson Cannon of their intention to do so. Even when she received a facsimile from Ferguson Cannon on the day default judgment was entered Ms. Mumford did not inform Ferguson Cannon of this fact.
  1. [27]
    As I have noted, the default judgment was subsequently set aside by consent. Presumably if the Plaintiffs thought they had a chance of holding the judgment in their favour, they would not have consented to such an order.
  1. [28]
    I can see no reason why the successful defendant should not have his costs relating to the setting aside of the default judgment which should not have been entered without notice to his solicitors.

(b) Delay by the Defendant

  1. [29]
    In all the circumstances, I am not persuaded that the defendant has delayed to such an extent that he should not have interest on the judgment. The plaintiffs should not have entered default judgment in the first place, and much of the delay was occasioned by their decision to start proceedings in the lower Court. Again, they consented to the transfer of these proceedings to this Court and to the provision of fresh pleadings. There is absolutely no merit in Ms. Anderson’s submission that the defendant should not have interest on his judgment in full.

(c) Conduct of the Defendant at trial

  1. [30]
    Ms. Anderson complains that the defendant has taken an overly technical approach which has added to the costs unnecessarily. Although she does not refer to it, I take her submission to be based on r. 5 UCPR.
  1. [31]
    She complains that the Defendant unfairly forced her client to prove certain facts which he did not then contest at trial. I do not intend to deal with her submission in any detail. In my opinion, the defendant conducted his case appropriately in accordance with the general philosophy of the rules. The actual trial was completed in ½ day! There was no formal admission of an encroachment, but neither was there any need for the plaintiff to call witnesses given that the survey (Exhibit 2) was admitted without objection.
  1. [32]
    Ms. Anderson further submits that the defendant “failed over a prolonged period, from May 2007 to the date of trial 24 October 2008 to say what the basis of his defence was.” There is no substance in this point. Firstly, as far as I am aware, the plaintiffs never sought further and better particulars of the Defence and in any event, paragraph 6 of the Defence (as amended without objection on the day of the trial) clearly pleads the point on which essentially the defendant succeeded. The dispute was largely determined on matters of law in any event.
  1. [33]
    Finally, Ms. Anderson submits that the defendant failed in his duty to disclose relevant documents. As I have noted, at one point Oric Legal wrote a r. 444 letter about disclosure which appears to have been premature. No application was ever made, nor was any complaint made prior to delivery of judgment, that the plaintiffs had been prejudiced by any alleged failure by the defendant to disclose documents.
  1. [34]
    I am not sure I understand Ms. Anderson’s submission (set out in paragraph 13 of her written submission) that “the justice of the case” demands that the successful defendant should not recover his costs.
  1. [35]
    For the reasons I have set out, the defendant is entitled to the orders sought in paragraphs 4-6 of the draft order attached to Mr. Nevison’s written submission namely:
  1. [36]
    I declare that:
  1. On 26 April 2007 the Plaintiffs wrongfully terminated the Contract dated 23 March 2007 (“the Contract”) between the Plaintiffs as Buyer and the Defendant as Seller in relation to property described as Lot 18 on SP121164 being the whole of the property comprised in Title reference 50277604.
  2. The Defendant validly terminated the Contract on 29 January 2008.
  3. The sum of $40,000 paid into Court (and any accretions thereon), representing the deposit paid by the Plaintiffs pursuant to the terms of the Contract, be paid out of Court to the Defendant.
  4. The Plaintiffs pay to the Defendant the sum of $6077.25 by way of interest pursuant to s. 47 Supreme Court Act 1995 (Qld).
  5. The Plaintiffs pay the Defendant’s costs of and incidental to the claim and counterclaim (including reserved costs) on the standard basis.
Close

Editorial Notes

  • Published Case Name:

    Harris & Maher v Prigg (No. 2)

  • Shortened Case Name:

    Harris & Maher v Prigg (No. 2)

  • MNC:

    [2008] QDC 279

  • Court:

    QDC

  • Judge(s):

    Robertson J

  • Date:

    28 Nov 2008

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Challis v O'Brien [1956] QWN 39
1 citation
Jump To
Cite 1 - [1956] QWN 39
Chan v Edwards [2002] QCA 251
1 citation
Jump To
Cite 1 - [2002] QCA 251
Reid v Jensen [2002] QDC 247
1 citation
Jump To
Cite 1 - [2002] QDC 247
Standen Operations Pty Ltd v The Black Dog Café (Holdings) Pty Ltd & Ors [2008] QDC 225
1 citation
Jump To
Cite 1 - [2008] QDC 225

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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