Pollock Holdings (Queensland) Pty Ltd v Rodcar Pty Ltd
[2011] QDC 33
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
- Pollock Holdings (Queensland) Pty Ltd v Rodcar Pty Ltd[2011] QDC 33
- Add to List
Pollock Holdings (Queensland) Pty Ltd v Rodcar Pty Ltd[2011] QDC 33
Pollock Holdings (Queensland) Pty Ltd v Rodcar Pty Ltd[2011] QDC 33
[2011] QDC 33
DISTRICT COURT
CIVIL JURISDICTION
JUDGE JONES
No 2918 of 2010
POLLOCK HOLDINGS (QUEENSLAND) PTY LTD | Plaintiff |
and | |
RODCAR PTY LTD AND ORS | Defendants |
BRISBANE
DATE 25/02/2011
ORDER
HIS HONOUR: On 12 October 2010 the plaintiff as a land lord commenced proceedings against the first defendant as a tenantand the second and third and fourth defendants as guarantors.The Claim effectively seeks arrears of rent, interest andcosts. There was no counterclaim by any of the defendants.
The defendants filed a defence raising a number of mattersand, in particular, that the lease was not of a commercial character, that the terms of the lease were unconscionable andthat the first defendant had entered into the lease under economic duress. There were also allegations that the plaintiff had failed to mitigate and that the guarantee wasvoid because the second, third and fourth defendants were notavailed of the opportunity to obtain legal advice.
Not withstanding those defences, payments were made by the defendants to the plaintiff in part payment of the amount claimed including a payment of $5,000 on 8 December 2010. The plaintiff applied for summary judgment on 17 December 2010 seeking judgment for the balance.
Following that, the defendants paid to the plaintiff a number of further payments, including one $7,000 payment on27 January 2011. The net effect of these payments is that thewhole of the amount claimed under this Statement of Claim hasnow been paid. The only matter that is left for determinationin reality is now the question of any entitlement of theplaintiff to costs. The plaintiff is seeking in addition tothe costs of and incidental to this application, the othercosts it has incurred in respect of the proceedings to date and seeks costs on an indemnity basis, relying on clause 3.4.1of the lease.
Costs are resisted, essentially for three reasons which were identified by Ms Dixon in her outline of argument. They are,first, that before the plaintiff can claim a judgment therehas to be an amount owing and there no longer is any amountowing. Two, before the defendant can claim any costs forsummary judgment, on a summary judgment application, he has tofirst bring the application. And, there is no longer any extant application then, as I understand the argument, no costs can follow. Last, that the defendant says that not withstanding the existence of bona fide defences on the merits which cannot be determined summarily, the plaintiff then could not succeed and accordingly, no cost should follow.
In my opinion none of the matters raised provide a defence toan order for costs. The first of the matters, in my view, isartificial. It would, in effect, deny any successful party recovering costs, not withstanding the settlement of theprimary action as late as on the date of the hearing of proceedings. In my view a defendant cannot avoid the cost ramifications of proceedings by simply paying out the amount claimed.
As to the need to win an application, the application for summary judgment has become redundant because the defendants have paid the whole of the amount claimed. Accordingly, the merits of the defence will never be able to be tested. That is really a matter which lies at the defendants' feet and doesnot provide a reason for denying the plaintiff costs, in my view.
I might add there that, in my view, the defences raised do not appear to be particularly strong but I do not need to decide that matter further.
Accordingly, in my view the plaintiff is entitled to its costs.
The final question is to be determined is whether or not costs should be on an indemnity basis. Clause 3.4.1 of the lease deals with the question of lessor's costs. The relevant part of that clause provides:
"And in the case of default by the lessee in performing orobserving any covenance herein contained or implied the lessee shall pay to the lessor all legal expenses (calculated on asolicitor and own client basis) and other costs, charges and expenses for which the lessor shall become liable in consequence of or in connection with such default."
In my view, the proceedings in issue are of or in connection with default on behalf of the defendants.
Mr Forde, counsel for the applicant/plaintiff, referred me to two decision, Mid Australia and Around Australia [2005] QSC 91and Gomer Holdings UK Limited and Ors and Binaries Finance Limited and Ors No 2 [1993] Chancery 171 as authority for the proposition that where there is contractual rights to costs specified within the contract then the discretion to exercise costs should ordinarily be exercised to reflect the contractual rights.
Those submissions advanced by Mr Forde were not really challenged by Ms Dixon and I can see no good reason to depart from that approach.
Accordingly, the orders will be that the defendants are to paythe plaintiff's costs of the proceedings up to 25 February 2011 on a solicitor and own client basis.