Transport Welding Engineering Pty Ltd v Heavy Haulage Australia Pty Ltd (No 2)
[2015] QDC 17
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- Unreported Judgment
- Transport Welding Engineering Pty Ltd v Heavy Haulage Australia Pty Ltd (No 2)[2015] QDC 17
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Transport Welding Engineering Pty Ltd v Heavy Haulage Australia Pty Ltd (No 2)[2015] QDC 17
Transport Welding Engineering Pty Ltd v Heavy Haulage Australia Pty Ltd (No 2)[2015] QDC 17
DISTRICT COURT OF QUEENSLAND
CITATION: | Transport Welding Engineering P/L t/as Mansell Heavy Towing v Heavy Haulage Australia P/L & Anor (No 2) [2015] QDC 17 |
PARTIES: | TRANSPORT WELDING ENGINEERING PTY LTD (ACN 010 251 091) trading as “MANSELL HEAVY TOWING” (plaintiff) v HEAVY HAULAGE AUSTRALIA PTY LTD (ACN 100 650 226) (first defendant) and JON KELLY (second defendant) |
FILE NO: | 1345/14 |
DIVISION: | Trial (Civil) |
PROCEEDING: | Claim |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 13 February 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Dorney QC DCJ |
ORDERS: |
|
CATCHWORDS: | Costs |
LEGISLATION CITED: | Uniform Civil Procedure Rules 1999, r 171, r 292, r 296, r 299, r 658, r 681, r 687(2)(a) |
CASES CITED: | AVS Catering Pty Ltd v Brisbane Broncos Corporation Pty Ltd [2005] QSC 395 Murdoch v Lake [2014] QCA 269 |
COUNSEL: | B A Hall for the plaintiff M D Alexander for the first and second defendant |
SOLICITORS: | Creevey Russell Lawyers for the plaintiff Hillhouse Burrough McKeown for the first and second defendant |
Introduction
- [1]On 3 February 2015 when giving judgement in this proceeding I ordered that all parties file and serve submissions, if any, concerning costs by 4.00pm on 10 February 2015.
- [2]Both sides have now complied with that order. The defendants rely upon an affidavit of Douglas George Bartholomew filed 12 February 2015. The plaintiff relies upon an affidavit of Ashley Stanton filed 9 July 2014.
- [3]The two costs issues raised are, first, with respect to the disposition of the claim and, secondly, with respect to costs which were reserved by me on both 7 July 2014 and 11 July 2014.
General costs of the proceeding
- [4]In the Reasons published on 3 February 2015, I explained that I gave judgment for the plaintiff against the first and second defendants on two bases (although the plaintiff’s success against the second defendant was on the only pleaded cause of action against him).
- [5]The only “lack” of success that the plaintiff had was in failing to recover on the Agreement that was pleaded. Nevertheless, the plaintiff did establish that an agreement existed and it is correct for it to assert that the facts necessary to prove the agreement that was found to exist were substantially the same as the evidence relied on to prove the claims of restitution and misleading or deceptive conduct. I therefore accept the plaintiff’s contention that those costs that went to establishing the pleaded agreement and any damages that might flow from that were relatively insignificant in terms of the pleadings, the preparation and the evidence led at trial.
- [6]In those circumstances, in accordance with r 681 of the Uniform Civil Procedure Rules 1999 (“UCPR”) and relying upon Murdoch v Lake,[1] noting in particular that the primary purpose of an award of costs is to indemnify the successful party, I conclude that this case falls within the principle that a party who has not been “entirely successful” is “not inevitably or even, perhaps, normally deprived of some of its costs”, being an explanation by Muir JA adopted in Murdoch: at [20]. See, also, Murdoch at [21].
- [7]It needs to be remarked, as well, that the “several causes of action” pleaded in paragraphs 42 to 46 (inclusive) of the Statement of Claim were simply alternative bases for claiming restitution and, similar to what has been discussed above, in no way added significantly to the costs associated with pleadings, preparation or the trial.
- [8]Accordingly, especially in circumstances, also, where the second defendant has not had any success, it is appropriate that the first and second defendants pay the plaintiff’s costs of the proceeding.
Reserved costs
- [9]By an application filed 16 June 2014, the plaintiff applied for summary judgment pursuant to r 292 of the UCPR and, alternatively, relief pursuant to r 171 and r 658.
- [10]The history of what occurred after that is described in the affidavit of Ashley Stanton filed 9 July 2014, from the plaintiff’s perspective, and the affidavit of Douglas George Bartholomew filed 12 February 2015, from the perspective of the defendants. When the application came before me on 7 July 2014 – that being its return date endorsed on the application – it was adjourned to 11 July 2014 to coincide with a consent application by all parties to have the matter listed on the Commercial List.
- [11]On 11 July 2014, the parties had reached an agreement as to what to do with that earlier application. Thereupon, that application was dismissed and costs were reserved.
- [12]It is not unimportant that one of the further directions that the court gave on 11 July 2014 was that defendants file and serve an amended defence by 4 August 2014. That was done on 5 August 2014 (but no issue has been taken with that timing). What that Amended Defence did show though was that, by then at least, instructions had been obtained as to the nature of contest between Mr Webster and Mr Kelly about the content of the conversation between them which was held on 18 February 2013. It cannot be denied by the defendants that those amendments were of some significance.
- [13]Turning, then, back to the history before 7 July 2014, it cannot be disputed that, by that date, the defendants had the Statement of Claim for almost three months, had the plaintiff’s particulars (filed on 11 June 2014) for some 16 days, and had the defendant’s application for some three weeks. Furthermore, by r 296 of the UCPR the defendants were required to serve any affidavit material in response to the application at least four business days before the hearing, with that response day being 1 July 2014.
- [14]Although, on 30 June 2014, the solicitors for the defendants sought that the hearing of the application be adjourned, the defendants filed no material in response when that was not agreed to.
- [15]That advice by the solicitors for the defendants was contained in a letter dated 30 June 2014. That letter raised foreshadowed allegations (to be later included in the amended pleading), particularly to be based on instructions of the second defendant. But, as has been already canvased, there were, eventually, significant further allegations by the defendants as well.
- [16]Given the matters raised in that letter, despite the defendants doing nothing prior to the hearing on 7 July 2014, the plaintiff should then have taken the view that it finally took as reflected in the order made on 11 July 2014 (namely, that the application be dismissed).
- [17]Whatever approach is taken to this issue, I do not find that the circumstances which engage r 299 of the UCPR fully applied. Nevertheless, there is some substance in the contention, supported by the decision of Chestermann J (as he then was) in AVS Catering Pty Ltd v Brisbane Broncos Corporation Pty Ltd,[2] that inadequacies in a pleading have to be addressed and such inadequacies can invite an application for judgment: at [33]. But, in the end, the application was dismissed.
- [18]Given all of the relevant circumstances, I consider that it is fair and reasonable that the plaintiff be awarded some costs of the application filed 16 June 2014, but I limit those costs, under r 687(2)(a) of the UCPR to be fixed at 75% of such costs because of the matters that I have just canvased.
Summary
- [19]I will order that the defendants pay the plaintiff’s costs of the proceeding. Given the default provisions in the UCPR concerning costs, it is unnecessary to make the order any more detailed.
- [20]As for the reserved costs, I will further order that such costs of the proceeding include costs of the application filed 16 June 2014, to be fixed at 75% of such costs.