Norfolk Estates Pty Ltd v Cardno (Qld) Pty Ltd (No 3)
[2013] QDC 308
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- Unreported Judgment
- Norfolk Estates Pty Ltd v Cardno (Qld) Pty Ltd (No 3)[2013] QDC 308
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Norfolk Estates Pty Ltd v Cardno (Qld) Pty Ltd (No 3)[2013] QDC 308
Norfolk Estates Pty Ltd v Cardno (Qld) Pty Ltd (No 3)[2013] QDC 308
DISTRICT COURT OF QUEENSLAND
CITATION: | Norfolk Estates Pty Ltd v Cardno (Qld) Pty Ltd (No 3) [2013] QDC 308 |
PARTIES: | NORFOLK ESTATES PTY LTD ACN010355138 (plaintiff) V CARDNO (QLD) PTY LTD ACN051074992 FORMERLY KNOWN AS CARDNO MBK (QLD) PTY LTD (defendant) |
FILE NO/S: | 2863/09 |
DIVISION: | Civil |
PROCEEDING: | Trial |
ORIGINATING COURT | District Court, Brisbane |
DELIVERED ON: | 2 December 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 26 June 2013 |
JUDGE: | Reid DCJ |
ORDER: | Defendant to pay the plaintiff’s costs of and incidental to the action to be assessed on the Magistrates Court scale where the amount recovered is less than $50,000 (scale G) pursuant to r 697 of the UCPR. |
CATCHWORDS: | Costs – UCPR rr. 360, r 362, 697 – All up offer – difficulty in offer not being for a sum and for costs |
COUNSEL: | K Kelso for the plaintiff D Keane for the defendant |
SOLICITORS: | Hynes Lawyers for the plaintiff Thynne and Macartney for the defendant |
- [1]The trial of this matter proceeded for four days ending on 30 May 2013. I gave reasons for judgment on 21 June. Subsequently further submissions as to interest were made, and I gave judgment on 26 June for $33,243.50 and interest in the sum of $7,286.23. Two issues arise. Firstly, because of an offer made by the plaintiff on 4 November 2011 it sought costs on an indemnity basis. Secondly, it submits that it should in any case get costs on the District Court scale. Written submissions were made by both parties on these issues.
- [2]Unfortunately the judgment with respect to costs was overlooked until now. I apologise to both parties.
- [3]The plaintiff made a formal offer on 4 November 2011 to settle for $45,000 inclusive of the claim, interest and costs. The defendant did not accept the offer. The provisions of the Uniform Civil Procedure Rules relevant to the issues to be determined are as follows:
“360 Costs if offer to settle by plaintiff
- (1)If—
- (a)the plaintiff makes an offer to settle that is not accepted by the defendant and the plaintiff obtains a judgment no less favourable than the offer to settle; and
- (b)the court is satisfied that the plaintiff was at all material times willing and able to carry out what was proposed in the offer;
the court must order the defendant to pay the plaintiff's costs calculated on the indemnity basis unless the defendant shows another order for costs is appropriate in the circumstances.”
“362 Interest after service of offer to settle
- (1)This rule applies if the court gives judgment for the plaintiff for the recovery of a debt or damages and—
- (a)the judgment includes interest or damages in the nature of interest; or
- (b)under an Act the court awards the plaintiff interest or damages in the nature of interest.
- (2)For giving judgment for costs under rule 360 or 361, the court must disregard the interest or damages in the nature of interest relating to the period after the day of service of the offer to settle.”
“697 Costs of proceeding in wrong court
- (1)Subrule (2) applies if the relief obtained by a plaintiff in a proceeding in the Supreme Court or District Court is a judgment that, when the proceeding began, could have been given in a Magistrates Court.
- (2)The costs the plaintiff may recover must be assessed as if the proceeding had been started in the Magistrates Court, unless the court orders otherwise. “
- [4]In my judgment relating to interest, I allowed interest on the judgment sum at 10% per annum, but only for part of the period after service of the offer on 4 November 2011, namely from 12 March 2010. I calculate interest on the assessed damages of $33,243.50 at 10% per annum from 12 March 2010 to the date of judgment (being 1.29 years from 12 March 2010) at $4,288. Thus having regard to the provisions of r 362, the sum that is relevant to the consideration of the question necessary to be resolved under r 360 is the judgment sum of $40,529.73 less the amount of $4,288 i.e. $36,241.73.
- [5]Seen in this way, the question is whether that sum is a judgment “no less favourable” to the plaintiff than the offer to settle.
- [6]The case illustrates the difficulty that can arise when a lump sum offer is made rather than one for a stated money sum and for costs.
- [7]In my view, it is not possible for me to determine that the judgment less interest incurred after service of the offer is “no less favourable” than the offer to settle. I cannot know what the costs of the action would have been at the date the offer was made. Nor, importantly, could the defendant have known at the time it was required to assess the offer. It is not possible to determine whether the judgment of $33,243.50 and interest of $2,998.23 (i.e. a total of $36,241.73) is equal to or greater than the offer.
- [8]I have considered the decision of Mackenzie J in Berg v Northern Rivers Finance [2004] QSC 163. In my view however, that case is readily distinguishable because his Honour there held that it was “inconceivable that the share to be paid by individual plaintiffs would be less than any relevant difference between the offer and the outcome”.
- [9]In my view, it is by no means inconceivable in this case that the costs at the time of the offer, when added to the relevant sum of $36,241.73 would exceed $45,000.
- [10]That view is reinforced when one has regard to the fact that the sum under consideration, and indeed the sum ultimately awarded, was below the jurisdiction of the Magistrates Court. At the time proceedings were instituted, that limit was $50,000. Interest on damages is to be disregarded when assessing whether a particular monetary limit on jurisdiction is reached.
- [11]Because the amount recovered was below that limit, the defendant submits the plaintiff should receive costs to be assessed only on the relevant Magistrates Court scale.
- [12]The plaintiff submits that costs should be assessed on the District Court scale because:
- (i)The defendant did not at any stage suggest the hearing of the matter in the District Court was not appropriate;
- (ii)The plaintiff had sought a declaration in its Claim and that relief could only be obtained in the Magistrates Court.
- [13]In my view, neither submission has force. It was not incumbent on the defendant to suggest to the plaintiff that the matter be heard in the Magistrates Court. The plaintiff elected to pursue the matter in this court, as it was entitled to do, but that election may have, and in this case will have, cost consequences having regard to the provisions of r 697. The declaration sought was not relevant to the relief ultimately awarded, which was a judgment for a money sum, wholly within the jurisdictional limit of the Magistrates Court.
- [14]In the circumstance it is my view that this was an appropriate matter to be commenced and heard in the Magistrates Court. I therefore order that the defendant pay the plaintiff’s costs of and incidental to the action to be assessed on the appropriate Magistrates Court scale where the amount recovered is less than $50,000 pursuant to r 697.