Peter Carter Transport Pty Ltd and Anor v Swansway No. 2 Pty Ltd (No. 2)
[2021] QDC 158
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- Unreported Judgment
- Peter Carter Transport Pty Ltd and Anor v Swansway No. 2 Pty Ltd (No. 2)[2021] QDC 158
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Peter Carter Transport Pty Ltd and Anor v Swansway No. 2 Pty Ltd (No. 2)[2021] QDC 158
Peter Carter Transport Pty Ltd and Anor v Swansway No. 2 Pty Ltd (No. 2)[2021] QDC 158
DISTRICT COURT OF QUEENSLAND
CITATION: | Peter Carter Transport Pty Ltd and Anor v Swansway No. 2 Pty Ltd (No. 2) [2021] QDC 158 |
PARTIES: | PETER CARTER TRANSPORT PTY LTD (first appellant) |
PETER CARTER (second appellant) | |
v | |
SWANSWAY NO. 2 PTY LTD (respondent) | |
FILE NO: | 154/20 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Courtat Maroochydore |
DELIVERED ON: | 30 July 2021 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | Decided without oral hearing; written submissions received on 5 July 2021, 16 July 2021, 23 July 2021. |
JUDGE: | Cash QC DCJ |
ORDER: |
|
LEGISLATION: | Uniform Civil Procedure Rules 1999 (Qld), r 681 |
CASES: | ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2008] 2 Qd R 298, [32] Peter Carter Transport Pty Ltd & Anor v Swansway No. 2 Pty Ltd [2021] QDC 109 Warren v Body Corporate for Buon Vista CTS 14325 [2007] QCA 160, [19] |
COUNSEL: | M D White for the appellants J Wilson-Smith for the respondent |
SOLICITORS: | Butler McDermott Lawyers for the appellants Miller Sockhill Lawyers for the respondent |
- [1]On 18 June 2021 I determined an appeal by the appellants against a costs decision made in the Magistrates Court.[1] The original proceeding concerned a claim by the respondent and a counterclaim by the first appellant. The appellants were partly successful in relation to the orders they sought on the appeal. This decision concerns the final orders to be made disposing of the appeal and the costs of the appeal. For the reasons that follow, the respondent should pay the appellants’ costs of the proceedings in the Magistrates Court, fixed in the total amount of $8,107.60; and the appellants’ costs of the appeal, fixed in the amount of $6,940.
- [2]The history of the proceedings that were the subject of the appeal are set out in my earlier decision. It is unnecessary to go over it again. I was of the view that the Magistrates decision as to the costs of the proceedings in that court was affected by error and should be set aside. I indicated that the appropriate orders as to the costs of the proceedings in the Magistrates Court would be that the respondent pay 80% of the appellants’ costs of the claim and all of the first appellant’s costs of the counterclaim, each on the standard basis. The parties have agreed that these amounts should be $5,695.90 for the claim and $2,411.70 for the counterclaim.
- [3]The parties have not agreed as to how the costs of the appeal should be dealt with. In my decision, I indicated a preliminary view that, having regard to the partial success of the appellants, they should have 50% of their costs of the appeal. While the respondent has embraced that intimation, the appellants have not. There is also disagreement as to the amount of those costs.
- [4]The first issue to be decided is what proportion of the appellants costs should be paid by the respondent. Costs are in the discretion of the court, but usually follow the event.[2] What constitutes the ‘event’ in a matter, or whether there are multiple events, can be the subject of debate. The appellants acknowledge that they failed in some aspects of the appeal. They asked for, but did not get, costs of the claim in the Magistrates Court on the indemnity basis, and I was not persuaded to alter the substance of the order for costs of the counterclaim. Nevertheless, the appellants argue that ‘as a matter of overall impression’ they should be considered successful in the appeal. With respect, I am unable to agree with this submission. The difference between costs on the indemnity and standard basis is not trivial. And while there were difficulties with the order for the costs of the counterclaim as it was expressed, I was not persuaded to alter what seemed to me to be the real intention of the Magistrate. In these circumstances I remain of the view that a just order would be for the appellants to recover 50% of their costs of the appeal.
- [5]The remaining matter is to decide what this amount should be. In an attempt to agree an amount the parties exchanged correspondence. The respondent proposed a schedule of costs to the appellant.[3] The total in the schedule was a little less than $6,700. The appellants at first embraced this amount, to which they proposed be added about $8,500 in counsel’s fees. This total amount, about $15,000, proved unacceptable to the respondent. The respondent pointed out some apparent errors in the schedule it had first proposed. This concerned the appellants’ application to extend time within which to appeal, the appellants having already been ordered to pay the respondent’s costs of this application. The further proposal of the respondent would have reduced the costs by about $3,500. The appellants had the final word, accepting that some details of the parties’ estimates might be able to be challenged. But the appellants submitted that their approach reflected a sensible and reasonable assessment of costs.
- [6]I think the appellant is largely correct in this characterisation. Fixing costs is not intended to be as rigorous a process as assessment. It is one of the advantages of fixing costs that to do so can permit a broad approach and spare the parties the expense of assessment.[4] Adopting this approach, I think the amount of $8,580 for counsel’s fees is appropriate. But the appellants’ costs of the application to extend time should be deducted from the total amount proposed by the respondent in early correspondence. This leaves an amount of about $5,300 as the balance of the appellants’ costs. The total of these two amounts is $13,880. While it is not a precisely calculated figure, it is in my view a fair representation of the appellants’ costs of the appeal.
- [7]Of course, I have already explained that the appellants should have only 50% of their costs of the appeal. That amount is $6,940.
- [8]For these reasons the orders are:
- The respondent pay the first and second appellants’ costs of proceeding commenced by the respondent’s claim in Maroochydore Magistrates Court M133/17 fixed in the amount of $5,695.90;
- The respondent pay the first appellant’s costs of proceeding commenced by the first appellant’s counterclaim in Maroochydore Magistrates Court M133/17 fixed in the amount of $2,411.70;
- The respondent pay the first and second appellants’ costs of the appeal fixed in the amount of $6,940.
Footnotes
[1] [2021] QDC 109.
[2] Uniform Civil Procedure Rules 1999 (Qld), rule 681.
[3] Exhibit BK-1 to the affidavit of Brenton King, affirmed 2 July 2021 (court document 12).
[4] ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2008] QSC 9; [2008] 2 Qd R 298, [32]; Warren v Body Corporate for Buon Vista CTS 14325 [2007] QCA 160, [19].