Geraldine Investments Pty Ltd v Williams
[2009] QDC 226
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- Unreported Judgment
- Geraldine Investments Pty Ltd v Williams[2009] QDC 226
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Geraldine Investments Pty Ltd v Williams[2009] QDC 226
Geraldine Investments Pty Ltd v Williams[2009] QDC 226
DISTRICT COURT OF QUEENSLAND
CITATION: | Geraldine Investments Pty Ltd (trading as Ray White on Mulgrave) v Williams [2009] QDC 226 |
PARTIES: | GERALDINE INVESTMENTS PTY LTD (ACN 010 330 864) trading as Ray White on Mulgrave Applicant/plaintiff v RICHARD ALLAN WILLIAMS Respondent/defendant
|
FILE NO/S: | Cairns 111 of 2009 |
DIVISION: | Civil |
PROCEEDING: | Application for interest, and costs |
ORIGINATING COURT: | District Court of Queensland, at Cairns |
DELIVERED ON: | 5 August 2009 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 26 June 2009; and, written submissions received up to 13 July 2009 |
JUDGE: | Alan Wilson SC, DCJ |
ORDER: | 1.The judgment in [2009] QDC 197 is extended to allow the plaintiff its claim, already awarded, of $14,698.28 plus interest of $2,794.692.Defendant to pay the plaintiff’s costs and outlays including reserved costs fixed at $10,227.90 |
CATCHWORDS: | PROCEDURE – COSTS FOR SUMMARY JUDGEMENT – where the plaintiff seeks fixed costs on an indemnity basis – whether costs should be awarded on an indemnity basis – whether costs can be fixed on a reliable basis Property Agents and Motor Dealers Act 2000 Uniform Civil Procedure Rules r 687(2), r 703 Cases considered: Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359 Geraldine Investments Pty Ltd v Williams [2009] QDC 197 Puryer v Webb [2008] QCA 320 Rosniak v Government Insurance Office (1997) 41 NSWLR 608 Smits v Tabone [2007] QCA 337 |
COUNSEL: | J Sheridan for applicant plaintiff B P Ryan for respondent defendant, by direct brief |
SOLICITORS: | Williams Graham Carman Defendant self-represented |
- [1]In this matter Reasons for Judgment were delivered in Cairns on 26 June 2009[1], with consequential orders giving Geraldine Investment Pty Ltd summary judgment in the sum of $14,698.28; striking out Mr William’s counterclaim, but giving him leave to deliver a fresh counterclaim within 14 days; and, requiring the parties to deliver further written submissions about interest, and costs, also within 14 days.
- [2]Written submissions have been received from Geraldine Investment’s solicitors, and from the barrister directly briefed by Mr Williams.
Interest
- [3]Geraldine Investments claims interest of $2,794.69 between the date of claim 3 August 2007 and the date of judgment, 26 June 2009 at the correct rate under Practice Direction No. 4 of 2007. The defendant made no submissions about interest. The judgment is extended to allow the plaintiff its claim, already awarded, of $14,698.28 plus interest of $2,794.69.
Costs
- [4]Submissions from the barrister representing the defendant record that his client will not be filing or serving a fresh counterclaim and the matter is, therefore, otherwise finalised.
- [5]The plaintiff seeks fixed costs, on an indemnity basis. It is contended, for Mr Williams, that costs should be assessed in the usual way.
- [6]The plaintiff’s calculation of its own costs on an indemnity basis is $17,046.50; or, on the standard basis, between $6,918.60 and $10,227.90.
- [7]The claim for indemnity costs is supported by assertions that the defendant had no reasonable defence to the plaintiff’s claim; was guilty of delay on a number of occasions, adding to costs; and was served, before proceedings were filed by the plaintiff, with a letter containing a copy of those pleadings and an offer to settle for the amount of the claim with no additional interest or costs.
- [8]While it is true, as the Reasons published on 26 June 2009 show, that the defendant’s conduct of the action has been dilatory and, in particular, he has failed to adequately respond to reasonable requests for particulars of his defence and counterclaim it is also relevant, as was observed there, that the counterclaim was not of a kind unknown to law and, for that reason, leave was given to deliver a fresh pleading. It is a matter for the defendant that he has chosen not to follow that course. I do not think his failure to re-plead is relevant to the basis upon which costs should be assessed.
- [9]The power to award costs on an indemnity basis is discretionary: Uniform Civil Procedure Rules, r. 703. As Cullinane J observed in Smits v Tabone [2007] QCA 337, costs are normally assessed on the standard basis and some special reason is required for any departure from that principle. Here, it is said, the defendant had no reasonable prospect of success in defending the plaintiff’s claim and ought to have consented to judgment – while continuing, if he wished, with his counterclaim. The counterclaim plainly relates, however, to issues arising from the matters upon which the plaintiff’s claim is based and I do not think that a failure to consent to judgment points to an abuse of process, or reprehensible conduct, of the kind referred to by Cullinane J in Smits v Tabone or the decisions referred to by His Honour there: Rosniak v Government Insurance Office (1997) 41 NSWLR 608 (at 616), and Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359.
- [10]Rather this is case in which a defendant, as not uncommonly occurs, proceeded on the basis that claim and counterclaim should be resolved coincidently, and not discretely. I do not think, in light of the issues raised in the counterclaim, that acting on that basis was so wrong as to make it “special” in the sense that word is used by Cullinane J in Smits.
- [11]In the alternative the plaintiff seeks to avoid a formal assessment of costs by persuading the court to accept an estimate under r 687(2). As explained in Practice Direction No. 3 of 2007, the court has a broad discretion under that rule to fix costs and will do so where that will avoid undue delay and expense, but only if it is confident that costs can be fixed on a reliable basis. In Puryer v Webb [2008] QCA 320 the Court of Appeal discussed the factors relevant to attempts to act under this rule, the evidence which is necessary for it to operate, and permissible inferences that can be drawn from affidavit material.
- [12]The plaintiff’s solicitor has filed a lengthy affidavit showing, relevantly, that if costs are not fixed by the court a detailed costs statement would need to be prepared, and that is an exercise which will involve substantial further expense and delay; the parties are in separate areas of the State and a costs hearing would be difficult to convene; and, the expense of having a costs statement prepared and an assessment undertaken would be as much as $4,000 which, it is reasonably submitted, is excessive in light of the quantum of the original claim.
- [13]The plaintiff’s solicitor has served, and exhibits to her affidavit, a computerised billing schedule which identifies the work that was undertaken and the costs allocated to each task. The solicitor also swears that the costs likely to be recovered on the standard basis would be between 40% and 60% of the actual costs incurred, i.e. a sum between $6,818.60 and $10,227.90.
- [14]In Puryer v Webb the respondent to a proposed costs order pressed, like the defendant here, for a formal assessment, a stance which was said to reasonably warrant an inference that the process of assessment would itself be expensive and prolonged; and, the Court implied[2] that was a material factor in deciding whether or not a prompt assessment should be made by the court.
- [15]It has already been observed that the defendant’s conduct in failing to provide adequate particulars and pressing on with a counterclaim which was inadequately pleaded exposed him to criticism. Insistence upon a formal assessment of costs increases concern that an action which has already taken too long, and been disproportionately expensive, will be further blighted by an expensive dispute about costs.
- [16]These factors dictate that fixing costs here and now is the better course.
- [17]Again, as in Puryer, there is no good reason why this court should not be prepared to act upon the detailed costing provided by the plaintiff’s solicitor and, in light of the defendant’s conduct during the proceedings, to assess costs at the higher end of the range estimated by the solicitor which, on its face, appears reasonable and is in accord with common experience. For these reasons I will award costs and outlays including reserved costs to the plaintiff in the sum of $10,227.90.