Ide Enterprises Pty. Ltd. v Hale's Engineering Pty. Ltd. (No. 2)
[2015] QDC 104
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- Unreported Judgment
- Ide Enterprises Pty. Ltd. v Hale's Engineering Pty. Ltd. (No. 2)[2015] QDC 104
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Ide Enterprises Pty. Ltd. v Hale's Engineering Pty. Ltd. (No. 2)[2015] QDC 104
Ide Enterprises Pty. Ltd. v Hale's Engineering Pty. Ltd. (No. 2)[2015] QDC 104
DISTRICT COURT OF QUEENSLAND
CITATION: | Ide Enterprises Pty Ltd v Hale’s Engineering Pty Ltd (No 2) [2015] QDC 104 |
PARTIES: | IDE ENTERPRISES PTY LTD ACN 080 450 657 (plaintiff) and HALES ENGINEERING PTY LTD ACN 010 924 731 (defendant) |
FILE NO/S: | D23 of 2008 |
DIVISION: | Civil |
PROCEEDING: | Trial – Further Order |
ORIGINATING COURT: | District Court at Bundaberg |
DELIVERED ON: | 12 May 2015 |
DELIVERED AT: | District Court at Maroochydore |
HEARING DATE: | 7 May 2015 |
JUDGE: | Long SC, DCJ |
ORDER: | The defendant is to pay 50% of the plaintiff’s costs of the proceedings, as agreed or to be assessed upon the standard basis and by reference to Magistrates Court Scale G |
CATCHWORDS | PROCEDURE – COSTS – where plaintiff was ultimately successful – where defendant had some success – whether no costs order should be made on the basis of respective success on separate issues – whether to award costs having regard to the plaintiff’s more substantial success, but taking account of the degree of success and amount recovered Uniform Civil Procedure Rules 1999, r 681 and r 684. Alborn & Ors v Stephens & Ors [2010] QCA 58. Hughes v Western Australian Association (Inc) (1986) ATPR 40 – 748 Mio Art Pty Ltd v Mango Boulevard Pty Ltd & Ors (no 3) [2013] QSC 95 Oshlack v Richmond River Council (1980) 193 CLR 72 Sochorova v Commonwealth of Australia [2012] QCA 152 |
COUNSEL: | A D Suthers, solicitor, for the plaintiff C S Harding for the defendant |
SOLICITORS: | Suthers Lawyers for the plaintiff Baker O'Brien Toll Solicitors for the defendant |
- [1]On 7 May 2015, judgment in this matter was delivered for the plaintiff, in the sum of $34,281.24. That sum comprised an amount assessed for damages at $20,481.98 and interest in the amount of $13,799.26. Written reasons for the determination as to damages were then published and reasons were provided orally and in respect of the only issue that remained in contention as to an award of interest, being as to the period over which interest would be allowed.
- [2]Submissions were also received as to the issue of costs. The plaintiff submitted that it should have its costs on the basis of the application of Magistrates Court Scale G, following the event of its success of recovery of damages on its claim.
- [3]The defendant pointed to the issues that were involved in the proceedings and the different outcomes as to those issues. Although it was correctly pointed out that there were three main issues, including the defendant’s counter claim, it was accepted that because this claim was ultimately not required to be determined because of the concession that it be effectively taken into account in the determination of the plaintiff’s damages, the issue as to the counter claim was effectively subsumed into the remaining issues and therefore added little to the proceedings.
- [4]Accordingly it was contended for the defendant, that there were effectively two issues in the litigation and effectively two events in the proceedings, with each party having effectively equal success, as to a respective issue or event. Therefore and having regard to UCPR 681 and 684, it was contended that there should be no order as to costs, in the sense that each party should be taken to have been successful and entitled to recover the costs of 50% of the proceedings. In support of that contention, reference was made to Mio Art Pty Ltd v Mango Boulevard Pty Ltd & Ors (No 3) [2013] QSC 95, Alborn & Ors v Stephens & Ors [2010] QCA 58, at [8] and Sochorova v Commonwealth of Australia [2012] QCA 152.
- [5]It may be noted that as observed in Mio Art by McMurdo J (at [4]):
“It has been held that the words ‘follow the event’ are to be read ‘distributively’, meaning that where there are two or more issues or questions in an action, each of them is, or gives rise to, an ‘event’ for which costs are to be determined separately.”[1]
- [6]In particular, the defendant pointed to the decision in Socharova, at [13] and where there is favourable reference to the following observations of Toohey J in Hughes v Western Australian Association (Inc) (1986) ATPR 40 – 748 at 48, 136:
- “1.Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order.
- 2.Where a litigant has succeeded only upon a portion of his claim, circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed.
- 3.A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party’s costs of them. In this sense, ‘issue’ does not mean a precise issue in the technical pleading sense but any disputed question of fact or law.” (Citations omitted)
- [7]In response and for the plaintiff, it is pointed out that, in recognition of its partial success, it only seeks costs on the appropriate Magistrate’s Court scale,[2] and points out that there has been significant costs incurred in achieving that success, including in obtaining the expert evidence which was necessary in order to do so.
- [8]The issue here is to be determined by an exercise of discretion according to the particular circumstances of this case. However and similarly to the conclusions reached in the Sochorova and Mio Art Pty Ltd decisions, it can be concluded that the result sought by the defendant would, in my view, not adequately represent the effective success achieved by the plaintiff.
- [9]What must be borne in mind is that the plaintiff’s claim was for damages for breach of a singular contract. The consideration of that claim required recourse to different evidential considerations pertaining to the standard of workmanship applied to the execution of the contract and in relation to each of two components of what was intended to be a piece of agricultural machinery and which were constructed by the defendant and respectively referred to as the collared pipe and the laser bucket floor. The plaintiff was only successful as to the later.
- [10]It can also be observed that had the plaintiff’s claim been limited to just that part on which it succeeded, a significant proportion of the costs incurred on both sides would likely have been incurred in any event. For instance, it would have been necessary to have some expert evidence. And also necessary to understand the contextual dealings in respect of the collared pipe, in order to understand the oral contract that was formed and to determine whether there had been a breach of that contract in respect of the laser floor bucket component.
- [11]As observed in Alborn at [8] and notwithstanding that:
“The "event" is not to be determined merely by reference to the judgment or order obtained by the plaintiff or appellant, but is to be determined by reference to "the events or issues, if more than one, arising in the proceedings". However, a party which has not been entirely successful is not inevitably or even, perhaps, normally deprived of some of its costs.” (Citations omitted)
- [12]In Sochorova (at [14]) and in express reference to Oshlack v Richmond River Council (1980) 193 CLR 72 (at [67] – [68] per McHugh J), it was noted that an award of costs is intended to compensate the successful party for the legal costs incurred by reason of the proceedings.
- [13]In an overall sense, the plaintiff has the more substantial success, in achieving a judgement for breach of contract. However, regard must necessarily be had to the amount recovered and the plaintiff’s lack of success (or defendant’s success) in respect of the collared pipe, is a significant matter. Although and as noted in the primary judgement, there was an issue about the proof of damages, even had the plaintiff succeeded on this issue, the claim for this component represented about 30% of the value of the claim, as filed and closer to 50%, as the claim was finally put to the Court. More significantly, each issue occupied a significant part of the proceedings and a roughly equal apportionment is appropriate.
- [14]In the circumstances, the most appropriate order to represent the relative degree of success of the plaintiff, is that the defendant is to pay 50% of the plaintiff’s costs of the proceedings, as agreed or to be assessed upon the standard basis and by reference to Magistrates Court Scale G.
Footnotes
[1] Reference was made to Interchase Corporation Limited (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 3) [2003] 1 Qd R 26, at [60]-[61]; 2001 QCA 191, at [83] – [84] and Alborn & Ors v Stephens & Ors [2010] QCA 58, at [7] – [8].
[2] Noting that in its entirety and as filed, the claim had exceeded the monetary jurisdictional limit for a Magistrates Court, at that time.