Chaskel's Emporium Pty Ltd v Capercorp Pty Ltd (No 2)
[2015] QDC 137
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- Unreported Judgment
- Chaskel's Emporium Pty Ltd v Capercorp Pty Ltd (No 2)[2015] QDC 137
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Chaskel's Emporium Pty Ltd v Capercorp Pty Ltd (No 2)[2015] QDC 137
Chaskel's Emporium Pty Ltd v Capercorp Pty Ltd (No 2)[2015] QDC 137
DISTRICT COURT OF QUEENSLAND
CITATION: | Chaskel’s Emporium Pty Ltd v Capercorp Pty Ltd & Anor (No 2) [2015] QDC 137 |
PARTIES: | CHASKEL’S EMPORIUM PTY LTD (ACN 101 786 930) (plaintiff) v CAPERCORP PTY LTD (ACN 121 441 414) (defendant) and WILLIAM JACK KLUSKA (defendant-by-counterclaim) |
FILE NO/S: | 4583/13 |
DIVISION: | Trial (Civil) |
PROCEEDING: | Claim and Counterclaim |
ORIGINATING COURT: | Brisbane District Court |
DELIVERED ON: | 29 May 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Dorney QC DCJ |
FURTHER JUDGMENT AND ORDER: |
|
CATCHWORDS: | Costs – whether indemnity costs applicable |
CASES CITED: | Lee v Australia and New Zealand Banking Group Ltd [2013] QCA 284 Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) [1993] Ch 171 |
COUNSEL: | P L Somers for the Plaintiff M R Bland for the Defendant P L Somers for the Defendant-by-Counterclaim |
SOLICITORS: | Cronin Litigation Lawyers for the Plaintiff QBM Lawyers for the Defendant Cronin Litigation Lawyers for the Defendant-by-Counterclaim |
Introduction
- [1]On 20 May 2015 I gave all parties leave to file, and serve, written submissions on interest and costs. The defendant has done so. The Court has been informed that the plaintiff (and, presumably, the defendant-by-counterclaim) does not intend to make any submissions.
- [2]Because of the absence of any competing submissions, I will simply move to consider what orders on those matters should be made.
Interest
- [3]Turning, first, to the appropriate rate, it is clear from District Court Practice Direction No6 of 2013 that, using the interest rate calculator on the Supreme Court’s website, calculations can be made of interest over relevant periods. There is no reason advanced why the default judgment rate is not appropriate.
- [4]With respect to the sum relevant to unpaid royalties and marketing levies, since the total sum was payable during the period from 6 May 2012 to 2 November 2013, I have used that calculator to calculate relevant interest payable, from the earliest of those dates to the date of judgment (being 20 May 2015) and from the latest of those dates to the date of judgment, then averaging those two amounts.
- [5]The figures which are derived from the calculator are, respectively, $15,861.02 and $6,772.99. When those are added, and then averaged, the resulting figure is $11,317.01.
- [6]Turning, then, to the further sum of $10,000.00 for the additional award of damages for the period of 15 weeks commencing on 15 November 2013 and using the same bases and calculator as above, the respective figures are $986.24 and $796.03. Again, adding, and then averaging those figures, the result is $891.14.
- [7]When both of those figures are added together, the total is $12,208.15. When that total interest sum is added to the calculation of $78,037.51 the eventual judgment sum is $90,245.66.
- [8]I therefore intend to make an additional order that the interest to be assessed according to the judgment handed down on 20 May 2015 is that sum of $12,208.15.
Costs
- [9]By Clause 6(b) of the Franchise Agreement it was provided that the franchisee should be responsible for the reasonable legal costs of the franchisor incurred in consequence of any breach of that agreement by the franchisee, on a solicitor and own client basis.
- [10]Furthermore, by Clause 2.1 of the Deed of Guarantee and Indemnity, the defendant-by-counterclaim agreed to indemnify the defendant against any costs and expenses that the defendant incurred “due to a breach” of the Franchise Agreement by the franchisee.
- [11]The relevant principles were considered by the Court of Appeal in Lee v Australia and New Zealand Banking Group Ltd[1] in the judgment of Philip McMurdo J, writing for the court. After referring to relevant authorities, including Gomba Holdings (UK) Ltd v Minories Finance Ltd[2], he held that, although a discretionary judgment of the court, the discretion should be exercised in circumstances where the agreement between the parties provides for the payment of costs on an indemnity basis (or its equivalent) or for an indemnity against loss, in a way which corresponds with those contractual entitlements: at [8]-[9]. As he went on to hold further, there may well be circumstances which warrant a departure from that ordinary exercise. None were advanced here.
- [12]From the analysis of the nature of the counterclaim and the denial of liability on all grounds, the relevant tests have been met, in circumstances where it was necessary for the defendant to resist the plaintiff’s misleading conduct case in order to succeed on its counterclaim.
- [13]The order that should then be made is that the plaintiff pay the defendant’s costs of the claim and that the plaintiff and the defendant-by-counterclaim pay the defendant’s costs of the counterclaim, both to be assessed on the indemnity basis.
- [14]I have been assured that there are no reserved costs.