Goldvine Pty Ltd v Paris Properties Pty Ltd
[2017] QDC 111
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
- Goldvine Pty Ltd v Paris Properties Pty Ltd[2017] QDC 111
- Add to List
Goldvine Pty Ltd v Paris Properties Pty Ltd[2017] QDC 111
Goldvine Pty Ltd v Paris Properties Pty Ltd[2017] QDC 111
DISTRICT COURT OF QUEENSLAND
CITATION: | Goldvine Pty Ltd v Paris Properties Pty Ltd atf the Parisi Family Trust [2017] QDC 111 |
PARTIES: | GOLDVINE PTY LTD (ACN 010 832 578) (Plaintiff) v PARIS PROPERTIES PTY LTD (ACN 002 669 949) AS TRUSTEE FOR THE PARISI FAMILY TRUST (First Defendant) & QUESTGALE PTY LTD (ACN 099 516 949) (Second Defendant) & CASTLESHIP PTY LTD (ACN 100 104 201) (Third Defendant) & MICHAEL DOMINIC PARISI (Fourth Defendant) |
FILE NO: | 53/15 |
DIVISION: | Civil |
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court, Southport |
DELIVERED ON: | 6 April 2017 |
DELIVERED AT: | Southport |
HEARING DATE: | 1 September, 2016 |
JUDGE: | McGinness DCJ |
ORDER: | The plaintiff’s claim is dismissed. I order that the money paid by the defendants to Marino Law Practice trust account on or about 22 October 2014 pursuant to the agreement between the parties, together with accretions if any, be paid forthwith to the solicitors for the defendants. |
CATCHWORDS: | CONTRACT – Construction and Interpretation – Loan Agreement – claim for costs or expenses arising on default by the first defendants – terms of loan document – appointment of debt recovery agent – terms of engagement agreement – whether plaintiff entitled to recover from defendant amount payable to debt recovery agent CONTRACT – Construction and Interpretation – Section S 347 Property Agents and Motor Dealers Act 2000 – whether plaintiff prohibited from recovering from the defendants any amount payable to debt recovery agent CONTRACT – Guarantees and Indemnities – where first defendant not liable – whether other defendants liable COSTS – Legal costs – where some of the costs incurred related to legal costs of the debt recovery – where some of the costs related to costs of the proceedings – whether costs incurred recoverable by the plaintiff from the defendant Property Agents and Motor Dealers Act 2000, Sections 339(1), 347(1), 347(3) and 347(5) Debt Collectors (Field Agents and Collection Agents) Act 2014, Section 27(1) Acts Interpretation Act 1954 Section 24(2) Property Occupations Act 2014 Section 261(2) Watson v Scott [2016] 2 Qd R 484 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (2008) 72 NSWLR 1 King v King [2012] QCA 81 Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Gomba Holdings (UK) Ltd v Minories Finance Ltd [1993] Ch 171 Owners of Strata Plan 36131 v Dimitriou [2009] NSWCA 27 Paciocco v Australia and New Zealand Banking Group Ltd (2016) 90 ALJR 835 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Di Carlo v Dubois & Ors [2002] QCA 225 |
COUNSEL: | M. C Fisher for the Plaintiff M. R Bland for the Defendants |
SOLICITORS: | DCL & Associates for the Plaintiff QBM Lawyers for the Defendants |
- [1]On 28 March 2013 the plaintiff entered into a loan agreement with the first defendant as borrower, and the second third and fourth defendants as guarantors, for the sum of $329,993, to be repaid with interest on 31 August 2014 or upon the sale of certain land, whichever was the earlier. In addition, each of the defendants executed a guarantee and indemnity in favour of the plaintiff in respect of the loan. The first defendant did not repay the loan on or before the due date, but no claim was advanced in this proceeding for principal or interest. The current dispute between the parties is in relation to a claim which may be broadly characterised as a claim for costs or expenses arising on default by the first defendant. The case turns almost entirely on the terms of the documents in evidence,[1] and the applicable legislation, since almost all of the factual issues were agreed.
- [2]The parties agreed to the following facts which can be taken as proved for the purposes of the trial:[2]
“1. The Plaintiff and the First, Second, Third and Fourth Defendants entered into a Loan Agreement dated 28 March 2013.
- The Plaintiff and the First and Second Defendants entered into a Deed of Guarantee & Indemnity dated 28 March 2013.
- The Plaintiff and the First and Third Defendants entered into Deed of Guarantee & Indemnity dated 28 March 2013.
- The Plaintiff and the First and Fourth Defendants entered into a Deed of Guarantee & Indemnity dated 28 March 2013.
- The Plaintiff and the First Defendant entered into a General Security Agreement dated 28 March 2013
- The Plaintiff and Second Defendant entered into a General Security Agreement dated 28 March 2013.
- The Plaintiff and Third Defendants entered into a General Security Agreement dated 28 March 2013.
- The Plaintiff and Slater Byrne Recoveries entered into an Engagement Agreement dated 14 August 2014.
- The Plaintiff instructed Debt Collection Legal to prepare deeds of appointment of receiver on or about 17 August 2014.
- The Plaintiff retained Mr Fisher of counsel to advise as to its security documents on or about 25 August 2014.
- The First Defendant failed to pay the Advance to the Plaintiff on the due date of 31 August 2014.
- On 1 September 2014, the plaintiff appointed Domenic Calabretta as receiver and manager of the first, second and third defendants pursuant to the Securities
- On or about 1 September 2014, the plaintiff appointed Domenic Calabretta as receiver and manager of the first, second and third defendants pursuant to the Securities.
- Mr Fisher issued invoice no. 186 dated 8 September 2014 to the Plaintiff.
- Slater Byrne Recoveries issued invoice no. 157 dated 17 September 2014 to the Plaintiff.
- Debt Collection Legal issued invoice no. 708 dated 19 September 2014 to the Plaintiff.
- As from 30 September 2014, the defendants have or refused to pay the plaintiff the sum of $147,154.46.
- On or about 20 October 2014, the plaintiff and defendants entered into an agreement with respect to the plaintiff's legal and recovery costs pursuant to the Loan Agreement under which $147,154.46 was to be paid and was paid by the Defendants to Marino Law Practice Trust Account and with that amount not to be disbursed unless with written agreement between the plaintiff and the defendants or by court der.
- On or about 20 October 2014, the plaintiff and defendants entered into an agreement with respect to the plaintiff's legal and recovery costs pursuant to the Loan Agreement under which the First defendant was to pay and did pay $39,140.34 to the trust account of the receivers.
- On or about 22 October 2014, the first defendant complied with the requirements referred to in paragraphs 18 and 19 above.
- On or about 24 October 2014, the receiver resigned with immediate effect.
- On or about 27 October 2014, the plaintiff released and caused to be registered a discharge of the Securities.
- The amount of $147,154.46 (being the amount defined as the ‘Disputed Amount’ in the counterclaim) comprises the following amounts, namely (a) $127,027.51 to the plaintiff’s appointed recovery agent, Slater Byrne Recoveries Pty Ltd (“Slater Byrne”) pursuant to their invoice number 00157 dated 17 September 2014; and (b) $20,126.95 to the plaintiff and the recovery agent’s solicitors, Debt Collection Legal pursuant to their invoice number 708 dated 19 September 2014.
- The recovery costs arose for work performed by Slater Byrne on behalf of the plaintiff to recover the debt owed by defendants to the plaintiff and the plaintiff is liable for those recovery costs pursuant to the engagement agreement dated 14 August 2014 (“the Engagement”) entered into by the plaintiff with Slater Byrne or at common law.”
- [3]The parties agreed that there were three facts in issue. The first was whether the fourth defendant was told by the receiver appointed by the plaintiff words to the effect that the total amount due to the plaintiff ought to be covered by a payment of $400,000. There was, in the report of the receiver dated 25 September 2014, evidence that such a statement was made, qualified that it was subject to confirmation of the precise figure.[3] There was no other evidence on the point, and I accept that evidence and find that that was what was said. The third was whether the first defendant paid $400,000 to the receiver on 4 September 2014. There was also evidence in that report that such a payment was made, but on 5 September 2014. I so find.
- [4]The second was whether “the cost of $127,027.51 represented the work performed by Slater Byrne to recover the debt”. The plaintiff called a witness, Mr Levis, from Slater Byrne Recoveries Pty Ltd (“Slater”) who confirmed that Slater’s invoice dated 17 September 2014 in that amount was Slater’s bill in relation to debt collection from the defendants.[4] The witness spoke about the work done by that company with a view to achieving this, which for present purposes may be summarised as not extensive, but made it clear that the charge was by reference to the commission rate in the company’s engagement, applied to the debt of $329,993 referred to in that engagement, rather than something calculated according to the number and value of hours of services performed.[5] The question of whether the sum represented the work performed by Slater is therefore appropriately answered “no”, because the charge which was made was a charge imposed, not by reference to the work performed, but by reference to an agreed commission on the amount of the debt.
- [5]The plaintiff relied on cl 8(a) of the loan contract (“cl 8”) which was in the following terms:
“8(a) Costs and expenses
All costs, (including legal costs as between Solicitor and client) expenses and other amount incurred or paid by the Lender arising in consequence or on account of any default by the Borrower for the exercise or purported or attempted exercise of any of the Lender's rights and powers or for the preservation of or in any manner in reference to this Agreement, the security and/or the Guarantee given by the Guarantor) and shall be payable by the Borrower. Each party will otherwise pay their own costs of and incidental to this Loan Agreement and related agreements.”[6]
- [6]In Watson v Scott [2016] 2 Qd R 484 at [30], McMurdo P summarised the law relating to the interpretation of a commercial contract in terms which I need not quote in full here. I accept that as a correct statement of the law. To the references given by Her Honour, I would add what was said in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [46]-[52], which I regard as being to the same effect. Counsel for the plaintiff cited authority that decisions on clauses in other contracts are of limited value as precedents in this area,[7] but neither party relied on any decision placing any particular interpretation on a clause similar to cl 8, so the point is academic.
Recoverability of commercial agent’s commission
- [7]The first issue is whether the plaintiff is entitled to recover the amount payable to Slater. The agreement between the plaintiff and Slater was contained in a form of appointment of a commercial agent (new client engagement form) apparently signed by the director of the plaintiff company on 14 August 2014.[8] The plaintiff appointed Slater “to act as our licensed commercial agent”. It authorised Slater “to collect any accounts on the applicant’s behalf and further allow [Slater] to instruct solicitors when legal action is required…”. The fee schedule provided for “35 percent commission, plus GST”. The start date was identified as “1 September 2014 upon default of loan agreement between [the plaintiff and the first defendant], Slater to pay for all legal costs (litigation funding) to assist in the recovery of the loan of $329,993.” The second page provided that Slater would be entitled to charge commission as per the fee schedule when various things occurred, including if the debt was paid,[9] or if the plaintiff terminated the agreement.[10]
- [8]Clause 6 dealt with legal action and provided inter alia that Slater “shall engage solicitors on the applicant’s behalf and the applicant is responsible for the costs”. Under the signature of Mr Cooper on behalf of the plaintiff, there was written in:
“All costs, fees and charges (including legal costs) are payable by the borrower being Paris Properties Pty Ltd as per the loan agreement dated 28 March 2013. There is no recourse against Richard Gordan Cooper or Goldvine Pty Ltd for the whole collection process.”
- [9]It was agreed that the document with the handwritten additions represented the contract between the plaintiff and Slater. The defendants submitted that the effect of the special condition written in on the second page was that no costs had been incurred by the plaintiff, because it excluded any recourse on the part of Slater against the plaintiff. Clause 8 referred to amounts which had been “incurred or payed” by the plaintiff, so only such amounts are payable. It was submitted that since the effect of the handwritten clause was that there was no liability on the part of the plaintiff to Slater under the retainer agreement, in respect of this loan contract, no amount had been incurred, and there was no evidence of any actual payment to Slater by the plaintiff, so there was no liability for this amount to the plaintiff under cl 8. That is plainly correct.
- [10]In my opinion the position is covered by the decision of the Court of Appeal in King v King [2012] QCA 81. That case involved an argument about costs in circumstances where the successful party had been represented on a pro bono basis. Chesterman JA, with whom the other members of the court agreed, said at [7]:
“An order for costs operates as an indemnity to a successful party in litigation. Costs are awarded to recompense a successful party in respect of what it cost to bring or defend successful proceedings. A corollary is that the unsuccessful litigant is not required to pay any more than the costs incurred by his successful opponent…Before the right to indemnity can arise the successful litigant must be under a legal liability to his solicitors to pay costs. Another corollary is that if a successful litigant’s lawyers act for him without charge he is not entitled to an order for costs. There is nothing to indemnify him against.”[11]
- [11]The point of that decision was that no order for costs in favour of the successful party should be made in circumstances where that party had not “incurred” costs, because of the operation of the indemnity principle. The situation is the same here. In circumstances where the plaintiff has not incurred any liability to Slater, there can be no entitlement to recover any such liability pursuant to any contractual indemnity.
- [12]I should say that the terms of the agreement between the plaintiff and Slater cannot have the effect of imposing any liability on the defendants to pay Slater directly, nor could the plaintiff by this proceeding seek to enforce any such liability. To be fair, that was not a point sought to be relied on by the plaintiff.
Effect of the 2000 Act
- [13]The defendants relied on a further argument, that the plaintiff was prohibited from recovering from the defendants any amount payable to Slater, pursuant to s 347 of the Property Agents and Motor Dealers Act 2000 (“the 2000 Act”). That section provided relevantly:
“A person must not recover or attempt to recover from a debtor the costs or expenses of a commercial agent for—
- (a)collecting or attempting to collect a debt owed by the debtor; or
- (b)repossessing or attempting to repossess goods or chattels from the debtor.
Maximum penalty—200 penalty units.”
- [14]Subsection (3) went on to provide that “Costs or expenses recovered in contravention of subsection (1) may be recovered by the debtor as a debt.” Subsection (5) defines “costs” as not including “stamp duty” or “legal costs fixed by, or payable under, rules of court or a court order.” Although recovering or attempting to recover the costs or expenses of a commercial agent is made a criminal offence, it does not necessarily follow that there are civil consequences for such action, this being a matter to be determined on the true construction of the section.[12] Bearing in mind the terms of subsection (3) however, in my opinion on the true construction of s 347 it did provide a defence to any civil proceedings, on the basis that pursuit of such civil proceedings by the plaintiff amounted to enforcing a contractual entitlement in a way which is illegal, as contrary to the statute.
- [15]It was agreed that Slater was a licensed commercial agent.[13] It held a license as a commercial agent, and no issue was raised as to whether it was authorised under that license to perform the activity of a commercial agent relevant here. Nor was there any dispute about whether Slater had been properly appointed for the purposes of the 2000 Act. One of the activities authorised by a commercial agent’s license by s 339(1)(a) of the 2000 Act is to collect, or request payment of, debts.
- [16]It was submitted on behalf of the plaintiff that this section did not apply, for two reasons. The first was that the agreement to engage Slater was actually a litigation funding agreement rather than an agreement by which Slater was collecting or attempted to collect a debt of the first defendant. It is true that the agreement included a provision that Slater would pay for all legal costs, though it also included later a provision that the “applicant” was responsible for the costs of legal action incurred as a result of Slater’s engaging solicitors on the plaintiff’s behalf.[14] Assuming that this internal inconsistency within the contract is to be resolved in favour of the plaintiff, the introductory words in the appointment form expressly authorised Slater “to collect any accounts on the applicant’s behalf,”[15] which is specifically the activity of a commercial agent identified in s 339(1)(b) of the 2000 Act. In those circumstances the existence of some element of litigation funding within the overall agreement is irrelevant. It did not change the essential nature of what Slater was to do, which was to collect the debt. Because the agreement did provide for the appointment of an entity which was a licensed commercial agent to perform an activity of a licensed commercial agent, it follows that it was governed by the rule in s 347(1)(a) of the 2000 Act, whether or not the agreement also provided for Slater to fund the process itself, or to do something else for the plaintiff. There is no substance to this argument.
- [17]The other argument advanced by the plaintiff was that on 1 December 2014 the Debt Collectors (Field Agents and Collection Agents) Act 2014 commenced, which among other things repealed the Property Agents and Motor Dealers Act 2000. Nevertheless, all the relevant events had occurred prior to the operative date for the repeal of the 2000 Act. In those circumstances, the defendants had, under s 347(1) of the 2000 Act as it stood, a vested right not to have to indemnify the plaintiff in respect of any costs or expenses payable to Slater.[16] On the view I take of the situation, no right to recover such costs or expenses under the contract ever accrued to the plaintiff, but if I were wrong about that, it accrued, at the latest, at the time when payment was received from the debtor. That was on 5 September 2014, as found above.
- [18]I note that s 261(2) of the Property Occupations Act 2014 provides that proceedings may be started or continued, and heard and determined, for an offence under the 2000 Act as if it had not been repealed. This would apply to a charge against the plaintiff of the offence created by s 347(1) of the 2000 Act in the events that have happened, and demonstrates a legislative intention that the repeal of the 2000 Act was not to have the effect of legalising such conduct. As it happens, a provision similar to s 347(1) of the 2000 Act is in the replacement legislation, s 27(1) of the Debt Collectors Act 2014, but it is not necessary to discuss that provision.
Guarantees and indemnities
- [19]It was submitted that even if the first defendant was not liable, the second, third and fourth defendants were liable under the terms of their respective guarantees and indemnities. There is no substance in that; both of the reasons relied on by the defendants as showing that the first defendant was not liable apply equally to the second, third and fourth defendants. If the first defendant is not liable then it follows that the other defendants are not liable as guarantors. Section 347(1) of the 2000 Act refers specifically to recovery against a debtor, but because the guarantee is also an indemnity, all of them also were liable to the plaintiff by way of principal obligation, and hence all of them were also “debtors” for the purposes of s 347 of the 2000 Act. It would have been therefore just as a much an offence for the plaintiff to sue them as to sue the first defendant.
- [20]The plaintiff sought to rely on cl 6 of the deeds of guarantee and indemnity which provided as follows:
“6. If by reason of the Lender’s non-compliance with any of any Statute or with any Rule of Law or for any other reason whatsoever any covenant term or condition of the said Agreement (including the covenant to repay the moneys hereby secured or any part thereof) is rendered unenforceable by the Lender against the Borrower then the Guarantor HEREBY AGREES at all times to indemnify the Lender to the full extent in respect of the moneys hereby secured or any part thereof not required to be paid by the Borrower to the Lender as aforesaid and the Guarantor further indemnifies the Lender against and in respect of any damage loss claim demand cost expense or obligation direct or indirect which the Lender has or may suffer incur or sustain.”[17]
- [21]The indemnity purportedly provided by cl 6 falls into two parts. The first part relates only to “the money hereby secured”, which although not defined is clearly a reference to the “any and all monies including all principle, interest, costs, charges and expenses which may be or become payable to the lender under the agreement” referred to in cl 1 of the deeds. The term “agreement” is a reference to the loan agreement between the plaintiff and first defendant.[18] In those circumstances, if money is not payable under the loan agreement by the first defendant, it is not part of the “monies hereby secured”. This part of cl 6 is really circular.
- [22]The second part of cl 6 purports to provide an indemnity against or in respect of “any damage, loss, claim, demand, cost, expense or obligation…which the [plaintiff] has or may suffer, incur or sustain”. But the plaintiff has not suffered or sustained any damage, loss, claim, etc, because it is under no obligation to Slater, under the agreement between them. As well, the clause is only concerned with such damage etc, which may be suffered, incurred or sustained because any covenant, term or condition of the loan agreement is rendered unenforceable by the lender against the borrower. But there is no statute or rule of law which renders any covenant, term or condition of the loan agreement unenforceable; the situation is simply that, in the circumstances that have happened, the plaintiff is not entitled to rely on that condition in order to enforce this liability against the first defendant. The situation therefore falls outside cl 6, and that clause cannot be relied upon by the plaintiff against the other defendants.
- [23]In any case, the idea that there is some loss or expense or cost suffered by the plaintiff because it chose to enter into this agreement with Slater in this way does not mean that it was a loss or expense arising in consequence or on account of any default by the borrower. The position here is essentially the same as if the plaintiff, anticipating that the defendants were going to default on their loan obligation, had chosen to assign the benefit of that loan in equity to Slater at a 35 percent discount.
- [24]That is sufficient to deal with this part of the plaintiff’s claim on the basis of the matters argued at the trial. I might add however that my preliminary view is that there are two other reasons why this claim by the plaintiff cannot succeed.[19] The first is that it would be usual in a clause such as cl 8 to imply a restriction that would confine the operation of the clause to costs, expenses and other amounts “reasonably incurred or paid…”. It is not unusual for an entitlement by one party to recover costs or expenses incurred from another party to be subject to such a limitation,[20] and such a term would appear to satisfy the conditions in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283. One would, I think, require very wide language indeed in a term like cl 8 to justify the sort of exorbitant imposition which the plaintiff seeks to recover from the defendants in this proceeding. Indeed, this case stands as a good example of the sort of social evil which s 347 of the 2000 Act was no doubt intended to prevent.
- [25]The other matter that occurs to me is that, if the clause can operate in a way which exposes the debtors to paying a substantial amount if there has been any default at all, regardless of the consequences of that default to the plaintiff, it is starting to look like something which operates as a penalty. The same amount would be payable if the first defendant had been one day late and at that time Slater had not actually done anything to obtain payment of the debt, as if it took years of concentrated and strenuous effort on its part to secure repayment. A clause which operates as a penalty is unenforceable as contrary to public policy: Paciocco v Australia and New Zealand Banking Group Ltd (2016) 90 ALJR 835. It is true that this doctrine usually operates by reference to a clause which in terms necessarily imposes what the court regards as a penalty, but I am of the view that the principles justifying intervention by the court to render unenforceable a contractual term which will always operate as a penalty would also justify interference by a court to prevent the enforcement of a contractual term if in the circumstances of a particular case it would operate as a penalty. Although the doctrine is now a doctrine of common law, there remains an equitable jurisdiction to relieve against penalties.[21] Equity is concerned with the substance of matters rather than questions of form. It is however unnecessary to pursue these thoughts further.
Legal costs
- [26]The second part of the claim related to an amount of $20,126.95 included in an invoice dated 19 September 2014 from solicitors, directed to the plaintiff care of Slater.[22] The first argument in relation to the claim to recover the commission paid to Slater applies equally to these costs. The contract between the plaintiff and Slater provided that Slater would “engage”, ie retain, the solicitors, the handwritten clause on the first page of that agreement provided that Slater would pay all legal costs to assist in the recovery of the loan from the first defendant, and the part handwritten in on the second page provided that there would be no recourse against the plaintiff for “the whole collection process” which would include any such legal costs. In those circumstances, the effect of the agreement between the plaintiff and Slater was that the plaintiff did not have to pay anything in respect of the legal costs incurred in seeking to recover this debt. The position is the same as in relation to Slater’s commission. No part of this is recoverable by the plaintiff, because the plaintiff never incurred or paid the legal costs the subject of this part of the claim.
- [27]There are other difficulties with this claim. The first is that cl 8 refers to legal costs incurred or paid “in consequence or on account of any default by the borrower”, but there was no default by the borrower until the borrower had failed to pay the principal with interest on 31 August 2014. The clause does not contain a promise to reimburse the plaintiff for legal costs incurred in anticipation of default by the borrower. Insofar as the costs relate to legal work done before the first defendant’s default, they were not incurred as a consequence of that default, and are therefore not recoverable under cl 8. The amount this applies to comes to $13,400, being the first four items in the tax invoice, and the amount of counsel’s fee. There was an agreement, obviously made before 25 August 2014, to pay counsel a fixed fee of $2000 plus GST. That fixed fee was incurred when the agreement was made and the brief was delivered, and the fact that counsel had not finished all the work done pursuant to that agreement until after the default occurred does not mean that the costs were not incurred at the time when the agreement to pay the fixed fee was made.
- [28]It is also necessary to distinguish between the costs of this proceeding, and the costs of other action which was taken as a consequence of default. No part of the costs which are properly characterised as the costs of this proceeding can be recovered as money payable under the agreement, because the costs of the proceeding are within the discretion of the court in the proceeding. The terms of the agreement between the parties are relevant to that determination, but ultimately under the statute and rules costs are in the discretion of the court, and an agreement between the parties cannot deprive the court of that statutory discretion.[23]
- [29]Ultimately however because, for the reason first mentioned, no part of this claim is recoverable, it is unnecessary to consider the further question of dissecting out those things that are costs of this proceeding and those which might otherwise have been properly recoverable under cl 8.
Conclusion
- [30]It follows that the plaintiff’s whole claim fails, and insofar as, by this proceeding, the plaintiff is claiming the monies in dispute, that claim is dismissed. I order that the money paid by the defendants to Marino Law Practice trust account on or about 22 October 2014 pursuant to the agreement between the parties, together with accretions if any, be paid forthwith to the solicitors for the defendants.
- [31]The plaintiff has been wholly unsuccessful, so the plaintiff must pay the defendants’ costs of the proceeding. When these reasons are delivered, I will receive submissions in relation to the basis of assessment of those costs.
Footnotes
[1] In the agreed trial bundle, Exhibit 1.
[2] Statement of Agreed Facts, Exhibit 1.
[3] Document 19; in the trial bundle; Exhibit 1.
[4] Trial Transcript, p 10.
[5] Trial Transcript, p 11.
[6] Document 1 in the trial bundle; Exhibit 1.
[7] Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (2008) 72 NSWLR 1.
[8] Document 8 in the trial bundle; Exhibit 1.
[9] Clause 2, Document 8 of the trial bundle; Exhibit 1.
[10] Clause 5, Document 8 of the trial bundle; Exhibit 1.
[11] Omitting cited authority.
[12] Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410 at 413. This case falls within the fourth category identified by Gibbs ACJ.
[13] Trial Transcript, p 8.
[14] Document 8, clause 6 in the trial bundle; Exhibit 1.
[15] Ibid.
[16] See the Acts Interpretation Act 1954 s 24(2)(a) and (c).
[17] Document 8 in the trial bundle; Exhibit 1.
[18] See Recital A.
[19] This view is preliminary because these matters were not argued at the trial so I have not heard submissions from the plaintiff about them.
[20] See the analysis in Gomba Holdings (UK) Ltd v Minories Finance Ltd [1993] Ch 171 at 184 – 188; See also Owners of Strata Plan 36131 v Dimitriou [2009] NSWCA 27 at [37], [64], [130], concerning the interpretation of a statutory provision.
[21] Paciocco (supra) at [123].
[22] Document 10 in the Trial Bundle; Exhibit 1. Slater in fact paid these costs: Trial Transcript, p 10.
[23] As shown by the approach of the Court of Appeal in Platinum United II Pty Ltd v Secured Mortgage Management Ltd [2011] QCA 229 at [6]. To the extent that Campbell v Telford [2013] QCAT 620, relied on by the plaintiff, is to the contrary, I respectfully disagree with it.