Bradshaw v Henderson (No 2)[2009] QDC 38

DISTRICT COURT OF QUEENSLAND

1. [1]
   In this matter I gave judgment on 5 February 2009 for the plaintiff Mr Bradshaw against the second defendant Mr Winstanley for $14,000 for claim and $6,800 for interest. Each party has, by invitation, since delivered written submissions on costs. The plaintiff also sought leave to read and file an affidavit of his solicitor Mr Pike sworn 5 February 2009. Because the affidavit relates to costs, leave is granted^[1].

2. [2]
   The plaintiff’s success against the second defendant means he should have his costs (including any reserved costs) from that defendant. There is no reason to depart from the general or usual rule about costs expressed in the Uniform Civil Procedure Rules, r 681 – i.e., that costs will ordinarily follow the outcome of the case.

3. [3]
   The matter began in the Magistrates Court and was transferred to this court last year. Although the plaintiff only recovered damages which fell within the jurisdiction of the lower court, I accept that the complexity of the issues in it (involving a claim for specific performance of a contract to sell a marina berth, or damages in lieu) warrants that those costs be assessed on the highest scales for Magistrates Court costs up to the date of the transfer to this court and, thereafter, by reference to this court’s scales applying at all relevant times; and, there being no reason to contemplate indemnity costs, they will be assessed on the ‘standard’ basis^[2].

4. [4]
   The more difficult question concerns the costs of Ms Henderson, the first defendant. As the judgment shows, she was joined in the action on the basis she was either a party to a contract with the plaintiff, or simply the agent of the second defendant. She was found to be the latter but clothed with all necessary authority from that defendant and not, therefore, personally obligated to the plaintiff who, then, was ultimately found to have no right to any relief or remedy against her.

5. [5]
   She seeks an order that the plaintiff pay her costs on an indemnity basis, and resists any orders of the ‘Bullock’ or ‘Sanderson’ type. The plaintiff does seek an order of that kind, at least in part.

6. [6]
   As explained by Dr Cairns in the latest edition of his work^[3] a Bullock order is usually on the lines that, when an action involves more than one defendant and the plaintiff succeeds against one but not another, the unsuccessful defendant pays the costs of the plaintiff and, also, the successful defendant. The Sanderson order is a variation under which the plaintiff pays the costs of the successful defendant, but is then allowed to claim those costs from the unsuccessful defendant.

7. [7]
   (Some uncertainty can arise about the nature of these orders: Dr Cairns’ book speaks in terms that a Bullock order may take either of two forms, the first being that the unsuccessful defendant pays the costs of both the plaintiff and the successful defendant, and that the second is a variant in which the plaintiff pays the costs of the successful defendant but is allowed to add those costs to those it recovers from the unsuccessful defendant – and, Dr Cairns says, the latter is known as a Sanderson order. In Yamacoe Pty Ltd v Michel Survey Group Pty Ltd & Anor [2002] QSC 393 Fryberg J considered these kinds of orders in language which, with respect, suggested that it is a Sanderson order which directs that the costs flow directly from the unsuccessful to the successful defendant, and do not form part of the plaintiff’s costs against the latter^[4].)

8. [8]
   There is, firstly, no arguable basis for concluding that Miss Henderson ought to have her costs on an indemnity basis. The second defendant consistently denied the first defendant was his agent, in circumstances where the plaintiff’s only dealings had been with Ms Henderson. If the second defendant’s case on that point had succeeded, the plaintiff may have been entitled to relief against her. It is in those circumstances entirely unsurprising that the plaintiff proceeded against both.

9. [9]
   The plaintiff, conversely, contends that because the Ms Henderson raised alternative defences^[5] she ought not, in any event, recover all her costs and should pay some of the plaintiff’s costs associated with those defences.  I agree they took up time during the trial but do not accept the plaintiff’s contention that the Ms Henderson could simply have pleaded and relied upon her agency, and left it to the second defendant to run these alternative arguments.  Mr Winstanley was self represented, and not a lawyer, and could not have reasonably been expected to appreciate, or properly advance, those defences.  I am, then, unpersuaded that the plaintiff should recover any costs from the first defendant. 

10. [10]
    The circumstances in which it is appropriate to make a Bullock order were summarised by Dutney J in Smith v Capella State High School Parents and Citizens Association [2004] QSC 039 at para [5] where His Honour said: ‘The circumstances in which such orders may be made have been variously described. In essence, such an order may be made in circumstances where both the successful defendant and the unsuccessful defendant were reasonably and properly joined. The reasonableness of the joinder generally required there to be some conduct on the part of the unsuccessful defendant which might be regarded as an encouragement of the plaintiff to continue to pursue the successful defendant.’^[6]

11. [11]
    Again, I think, the material fact is that the second defendant always denied (and maintained at trial) that he had authorised the first defendant to act as his agent in the sale of the marina berth. So long as that defence was raised and persisted with, it cannot be said the plaintiff acted unreasonably in keeping the first defendant in the action. The defence raised, in particular, the question whether any authority was given by the second to the first defendant (and, if so, the nature and extent of that authority) and, of high significance, the possibility that if no authority existed the first defendant might be personally liable to the plaintiff for damages.

12. [12]
    In Gould v Vaggelas (1985) 157 CLR 215 Gibbs CJ considers Bullock orders^[7]  and adopted a test suggested by Blackburn CJ in Steppke v National Capital Development Commission (1978) 39 LGRA 94 at 100 that ‘ ..there is a condition for the making of a Bullock order, in addition to the question whether the suing of the successful defendant was reasonable, namely that the conduct of the unsuccessful defendant has been such as to make it fair to impose some liability on it for the costs of the successful defendant’. The conduct referred to by Blackburn CJ will include positions taken and arguments advanced through to judgment^[8].

13. [13]
    It was the conduct of the second defendant in denying Ms Henderson was his authorised agent, a stance he maintained through to the end of the trial, which justified the plaintiff’s inclusion of the first defendant in the action (and, by inference, his decision not to release that defendant at any time). That conclusion warrants the consequential finding that a Bullock order, under which the second defendant also pays the first defendant’s costs, ought be made. In terms of the judgments already cited, in light of the second defendant’s pleaded case it was always reasonable for the plaintiff to join the first defendant, and it was the second defendant’s conduct which made it reasonable for the plaintiff to pursue the first defendant, in the alternative.

14. [14]
    The first defendant submitted that, if an order of this kind was contemplated, a Sanderson order would be more appropriate because the first defendant may be hampered in pursuing the second defendant directly for costs where, as appeared during the trial, he now lives in New Zealand and (it is said by the first defendant) there is the possibility of complications arising given the personal relationship between the first and second defendants (who lived in a de facto marriage relationship for about many years). The latter contention is not, however, supported by any evidence. The former is not sufficient, it seems to me, to justify a Sanderson order when, for the reasons already discussed, a Bullock order is appropriate.

15. [15]
    Nor was evidence available to support another submission, made by the plaintiff, that an injunction should be put in place restraining the second defendant from selling or disposing of the marina berth, the subject of the action, pending the assessment of costs (or the further order of an appellate court); or, to support a further submission that the second defendant has only one asset available in Australia (the marina berth, the subject of the action). At the conclusion of the trial last year an order was made, without objection from the second defendant, that he be restrained from selling the marina berth pending judgment, but when judgment was delivered on 5 February that order was extinguished. I was not referred, in submission on costs, to anything in the evidence (or the transcript of the trial evidence) to support the making of new orders. That is not to say, of course, that they might not be pursued in the future.

16. [16]
    Finally, as Mr Pike’s affidavit showed, the plaintiff has previously paid some costs to each of the defendants pursuant to an order made in the Magistrates Court on 30 July 2008 vacating trial dates there and directing that the plaintiff pay the first defendant $2,025.00 and the second defendant $785.00 for costs. The question whether there should be any reduction in the costs orders for those earlier payments was not raised in written submissions on costs from the plaintiff, but mentioned in those from the first defendant. Doing the best I can with Mr Pike’s affidavit and the correspondence exhibited to it, it seems the costs were paid to compensate the defendants for the late adjournment, the need for which was only notified by the plaintiff to those defendants about a week before the trial date. In the circumstances, there is nothing to suggest those costs ought to be included (in the sense of a possible discounting, or adjustment) in any orders now being considered.

17. [17]
    It follows that the second defendant will be ordered to pay the costs of both the plaintiff and the first defendant assessed on the highest Magistrates Court scales up to the date of transfer to this court, and thereafter on this Court’s scales of costs applying from time to time, on the standard basis.