Nolan Meats Pty Ltd v Waltisbuhl
[2018] QDC 39
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- Unreported Judgment
- Nolan Meats Pty Ltd v Waltisbuhl[2018] QDC 39
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Nolan Meats Pty Ltd v Waltisbuhl[2018] QDC 39
Nolan Meats Pty Ltd v Waltisbuhl[2018] QDC 39
DISTRICT COURT OF QUEENSLAND
CITATION: | Nolan Meats Pty Ltd v Waltisbuhl [2018] QDC 39 |
PARTIES: | NOLAN MEATS PTY LTD (Appellant) v WAYNE RICHARD WALTISBUHL (Respondent) |
FILE NO/S: | 4229/2014 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Brisbane |
DELIVERED ON: | 21 March 2018 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
JUDGE: | Sheridan DCJ |
ORDER: | The respondent pay the appellant’s costs of the appeal assessed on the indemnity basis. |
CATCHWORDS: | PROCEDURE – COSTS – where appellant had a contractual entitlement to have its costs paid on an indemnity basis – where appellant had substantial success on appeal – where costs of the hearing below had been ordered on the standard basis – whether the court should exercise its discretion as to costs in relation to the appeal in a manner other than in accordance with the appellant’s contractual entitlements |
COUNSEL: | S J Webster for the appellant M K Callanan for the respondent |
SOLICITORS: | James Conomos Lawyers for the appellant S.J. Gurnsey & Company for the respondent |
- [1]The court gave its decision on 20 March 2017.[1]The proceedings arose out of a claim by the appellant for the costs of collecting monies owing pursuant to the terms of a credit application between the appellant and the respondent for the supply of meat by the appellant to the respondent (the agreement).
- [2]Relevantly, clause 5(b) of the agreement provided that the appellant reserves the right to charge:
…all costs associated with the collection of overdue accounts including but not limited to legal fees (on a solicitor/own client basis) and collection agent fees.
- [3]At the hearing, there was no dispute between the parties that the words “on a solicitors/own client basis” as used in the agreement were synonymous with “indemnity costs”. Further, consistent with the view of the learned Magistrate, the words used were considered to “plainly and unambiguously” give to the appellant a contractual entitlement to its legal costs on an indemnity basis.
- [4]The real dispute on the appeal was whether the learned Magistrate was right to interpret those words as requiring the appellant to either obtain an assessment of costs or lead expert evidence from a costs assessor to prove its claim and the right of the appellant to claim in the Magistrates Court the costs of proceedings in the District Court.
- [5]On appeal, having accepted that neither an assessment nor expert evidence was necessary and that there was an entitlement in one court to claim the costs of proceedings in another court, the appeal was allowed and the respondent was ordered to pay the appellant the sum of $23,189.47.
- [6]Notwithstanding the existence of the contractual entitlement, given way the hearing occurred in the Magistrates Court it was determined that the appellant should only be awarded the costs of the Magistrates Court proceedings on a standard basis.
- [7]At the time of making its decision, the court requested the parties make written submissions on the question of costs of the appeal. This judgment concerns those costs.
- [8]In the submissions, both parties accepted that the general rule is that the costs of proceedings are in the discretion of the court but follow the event unless the court orders otherwise.[2]The respondent accepted that there was no sufficient basis upon which to submit that costs should not follow the event.[3]The issue for resolution is whether costs should be ordered on a standard or indemnity basis.
- [9]The appellant accepted that the contractual provisions as agreed between parties could oust the discretion of the court. The appellant submitted, however, that as clause 5(b) of the agreement provides unambiguously for indemnity costs, costs should be ordered on the indemnity basis unless there is some special feature of the appeal which makes another costs order more appropriate. The appellant submitted that there was no special feature of the appeal which would make another costs order more appropriate.[4]
- [10]The appellant submitted that its conduct on the appeal differed to its conduct at the trial which was affected by certain procedural issues including the appellant seeking leave to re-open its case.[5]The appellant referred to the conduct of the respondent on appeal in discarding his primary argument that a costs assessment was a pre-condition to recovery of legal costs.[6]
- [11]In its submissions, the respondent relies on the manner in which the appellant conducted the trial against the provisional views expressed by the learned Magistrate and which were maintained by the learned Magistrate and became the grounds of the appeal. The respondent did not accept his primary argument had been discarded, but submitted that merely an alternative argument was put as to how to independently assess reasonableness.
- [12]As is apparent from the substantive decision given on 20 March 2017, and consistent with the decision made with respect to the appropriate order as to costs of the hearing in the Magistrates Court, the court is not bound to give effect to a contractual provision in making an order as to the costs of proceedings; though it is accepted the discretion should ordinarily be exercised so as to reflect the contractual right.[7]
- [13]In Rumball & Ors v Mortimore,[8]Owen J referred to factors raised in earlier decisions which may militate against the court exercising its discretion to make a costs order in accordance with the basis provided for in the contract including “policy considerations”, costs improperly or unreasonably incurred or certain inequitable conduct in the case of a mortgagee. Owen J referred to there being in that case “no question of disentitling conduct on the part of the plaintiffs”.[9]
- [14]In Chen & Anor v Keven McNamara & Son Pty Ltd,[10]Redlich JA described it as “some other discretionary consideration that militates against the making of such an order.”[11]In Lee v Australia and New Zealand Banking Group Limited,[12]the court considered that the circumstances of the case including the relative success of the parties warranted a departure.[13]
- [15]Given the decision on appeal, it is difficult to accept the continuing criticism by the respondent of the appellant’s conduct of the trial and its failure to heed the provisional views of the learned Magistrate and to call an independent expert. The trial was lost and an appeal was necessary, but that was not caused by the appellant’s conduct of the trial. That was caused by the respondent’s argument that the costs needed to be assessed.
- [16]In my view, the statutory test for the grant of leave to appeal does not offer a basis for a departure from the contractual provisions agreed between the parties.
- [17]Unlike its conduct of the trial, it is difficult to see that there is a basis in the conduct by the appellant of the appeal to justify, in the exercise of the court’s discretion, a departure from the contractual terms agreed by the parties.
- [18]The respondent should pay the appellant’s costs of the appeal assessed on an indemnity basis.
Footnotes
[1] Nolan Meats Pty Ltd v Waltisbuhl [2017] QDC 57.
[2] Uniform Civil Procedure Rules 1999 (Qld), r 681.
[3] Respondent’s submissions, [2].
[4] Appellant’s submissions, [5].
[5] Ibid.
[6] Ibid.
[7] Gomba Holdings UK Ltd & Ors v Minories Finance Ltd & Ors (No 2) [1992] 4 All ER 588, 607; See also Platinum United II Pty Ltd & Anor v Secured Mortgage Management Ltd (in liq) [2011] QCA 229, [5]-[8].
[8] [2000] WASC 126.
[9] Ibid, [19].
[10] [2012] VSCA 229.
[11] Ibid, [8].
[12] [2013] QCA 284.
[13] Ibid, [9].