NQCYC Marina Assc Inc v Dolkens
[2022] QDC 248
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- Unreported Judgment
- NQCYC Marina Assc Inc v Dolkens[2022] QDC 248
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NQCYC Marina Assc Inc v Dolkens[2022] QDC 248
NQCYC Marina Assc Inc v Dolkens[2022] QDC 248
DISTRICT COURT OF QUEENSLAND
CITATION: | NQCYC Marina Assc Inc v Dolkens [2022] QDC 248 |
PARTIES: | NORTH QUEENSLAND CRUISING YACHT CLUB MARINA ASSOCIATION INCORPORATED (Applicant) v ROSSLYN JOY DOLKENS (Respondent) |
FILE NO: | 2 of 2021 |
DIVISION: | Civil |
PROCEEDING: | Costs Judgment |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 9 November 2022 |
DELIVERED AT: | Townsville |
HEARING DATE: | In Chambers |
JUDGE: | Coker DCJ |
ORDER: | That the respondent pay the applicant’s costs of and incidental to the application, as agreed, and failing agreement, as per the standard basis. |
CATCHWORDS: | PROCEDURE – COSTS – COSTS CLAIMED ON AN INDEMNITY BASIS – where the applicant was entirely successful in obtaining orders sought – where the applicant seeks costs on an indemnity basis – where the applicant says an offer to settle, previously made on terms similar to the orders leads to indemnity costs being appropriate – whether the refusal by the respondent to accept the offer was prudent in all the circumstances – whether costs should be ordered on a standard or indemnity basis |
LEGISLATION: | Uniform Civil Procedure Rules 1999 (Qld), r 360. |
CASES: | Colgate-Palmolive Company v Cussons Pty Ltd [1993] 46 FCR 225, considered. Smith v Wessling-Smith & Others [2017] QSC 189, considered. |
COUNSEL: | Evans. W for the Applicant |
SOLICITORS: | Macrossan & Amiet Solicitors for the Applicant Woods Hatcher Solicitors for the Respondent |
Introduction
- [1]The North Queensland Cruising Yacht Club Marina Association incorporated was successful in an application seeking an injunction in relation to Rosslyn Joy Dolkens’ use of a berth at the marina, located in Bowen, berth 28. The orders that were made included the removal of the vessel then moored at berth 28, the vessel ‘Purrfect’, as well as the making of injunctions with regard to further use of the berth by a vessel which failed to comply with licence requirements.
- [2]Also ordered was costs and the submissions that have been received in that regard on the part of the North Queensland Cruising Yacht Club Marina Association, herein after referred to as the applicant, have now been provided. I also have the submissions regarding costs on behalf of Rosslyn Joy Dolkens, hereinafter, the respondent.
- [3]The applicant seeks an order to the effect that the respondent pay its costs on an indemnity basis. The application is couched on two particular bases. The first being that a formal offer was made and the court is therefore bound to follow rule 360 of the Uniform Civil Procedure Rules 1999, unless it is satisfied that it would not be appropriate to do so, in all of the circumstances.
- [4]Additionally, however, the applicant also contends that there is another basis upon which an order for indemnity costs could and should be made. That being, that general principles provide that the respondent’s refusal to accept an offer previously made was imprudent in the circumstances and gives rise to an indemnity costs order. What is specifically referred to there is the guidance provided in Colgate-Palmolive Company v Cussons Pty Ltd [1993] 46 FCR 225 at 233.
- [5]It is, of course, appropriate therefore to consider each of those bases upon which indemnity costs are sought, prior to turning to the position of the respondent in relation to this matter. Accordingly, I note, firstly, that rule 360 of the Uniform Civil Procedure Rules is in these terms:
Costs if offer by plaintiff.
- (1)If—
- (a)the plaintiff makes an offer that is not accepted by the defendant and the plaintiff obtains an order no less favourable than the offer; and
- (b)the court is satisfied that the plaintiff was at all material times willing and able to carry out what was proposed in the offer;
- the court must order the defendant to pay the plaintiff’s costs calculated on the indemnity basis unless the defendant shows another order for costs is appropriate in the circumstances.
- (2)If the plaintiff makes more than 1 offer satisfying subrule (1), the first of those offers is taken to be the only offer for this rule.
- [6]What is contended therefore on the part of the applicant is that there is no question that costs should follow the event in a matter such as this, but that because of the fact that an offer was made pursuant to the provisions of rule 360, that there should be an order made on the basis of indemnity costs.
- [7]To assist me in relation to this matter I have been provided with an affidavit under the hand of Kendell Kareem Bocos, which affidavit annexes to it a copy of an email sent to the solicitors then acting in relation to the proceedings for the respondent, which detailed the nature of the offer that was made. The offer to settle was in these terms:
- The Respondent remove or cause to remove the vessel known as “Purrfect” from Berth 28 at the Applicant’s marina within fourteen (14) days.
- The Respondent undertakes to the Applicant not to cause or permit any vessel (including any projections) to be berthed or moored in Berth 28 at the Applicant’s marina which exceeds 10 metres in length by 3.5 metres in beam.
- The Respondent pay the Applicant’s costs of the proceeding on the standard basis.
- [8]What is clear is that the benefit sought in relation to the proceedings before the court and the orders that were obtained, reflected the fact that the offer that was made was no less favourable than the nature of the order that was made on the 30th of August 2022. In other words, the applicant contends that the offer was reasonable and that it was therefore not appropriate for the respondent to have rejected such an offer.
- [9]The submission made is that because the offer was, in fact, more favourable than the orders that were obtained, because only standard costs were sought in the offer, is a basis upon which it would properly be contended that indemnity costs should be ordered.
- [10]It is noteworthy, of course, that rule 360 requires the court to be satisfied that, as is the case here, the applicant was, at all material times, willing and able to carry out what was proposed in the offer, and in the circumstances there is no suggestion that that would not have been the case and that the applicant was in a position to carry out what was proposed in the offer, so as to bring an end to these proceedings.
- [11]What the applicant says is that therefore if that is the case, then there is no contention, other than that there should be an indemnity order made in relation to the costs that are to be ordered. However, the submissions go on to note that should it be the case that the court were to find that there is a basis to determine that it would not be appropriate in the circumstances to order indemnity costs pursuant to the provisions of rule 360, then consideration should be given to indemnity costs pursuant to general principles.
- [12]In that regard the court is referred specifically to the general principles in relation to the proceedings, and of particular concern is a consideration as to whether the refusal by the respondent to accept the terms of the offer was imprudent, with reference made to the recent statements of Bond J in Smith v Wessling-Smith & Others [2017] QSC 189.
- [13]What is contended in that respect on the part of the applicant was that the offer was made at a stage of the proceedings where all of the applicant’s evidence had been provided to the respondent, so that the respondent was in a position to properly evaluate it, as well as that the offer involved an element of compromise. It being suggested by the applicant that that included the basis upon which costs would be sought on a standard basis, rather than upon any other basis.
- [14]Additionally, the decision by Justice Bond gives proper recognition to the fact that there needs to be consideration of the applicant’s prospects of success, assessed at the date of the offer, and the contention of the applicant’s legal representatives through their outline is that those prospects were good. And correspondingly, that the respondent’s prospects were poor, reflected, it is said, in the determination that was handed down by me on the 30th of August 2022.
- [15]Additionally, and it appears unable to be challenged, there needed to be an understanding that the offer was expressed in clear terms, and that there was appropriate time allowed for the respondent to consider the offer, and that the offer foreshadowed an intention to seek indemnity costs in the event of the rejection of the offer.
- [16]It was noteworthy in that regard that the offer to settle made specific reference to the provisions of chapter 9, part 5, of the Uniform Civil Procedures Act, related to therefore an indication of an intention to seek, if successful, and an offer not having been accepted, costs upon an indemnity basis.
- [17]From the perspective of the respondent in relation to this matter, the submissions that were made were, with respect, generally a recitation of the arguments that were put in relation to the proceedings, including some significant introductory or background factors that were the subject of consideration, in relation to the particular matter.
- [18]What is contended on the part of the respondent, however, is that the position of the offer that was put by the applicant in relation to the matter left the respondent caught, as they described it, between, “a rock and a hard place”, and that their only hope rested with attempting to persuade the court that the balance of convenience would favour the respondent over the applicant, in relation to any orders that were sought.
- [19]Quite simply, it was suggested on the part of the respondent that it was a situation where it was all or nothing that was proposed by the applicant insofar as the resolution of the matter, and from the respondent’s perspective, there was no alternative but that the attempt to obtain orders different to those sought by the applicant, in relation to the proceedings.
- [20]Thereafter, and, of course, there are factors that need to be considered, information was provided as to the financial circumstances of the respondent, noting that she is retired, that the purchase of the licence to moor for the berth 28 at the marina came from funds that were gifted to her and not from funds that were otherwise available, and that she is therefore dependent upon the provision of assistance financially only from her husband, until such time as she attains the age of 67, which is some two years or so away at this particular time.
- [21]There was also reference to the fact, and, in my view, it is a matter that plays on my mind in relation to the determination of these proceedings, that the legal representatives in the early stages in relation to this matter were representing the vendor, the purchaser and the marina. It is hard, with respect, to imagine a more fraught position that might be taken in respect of the proceedings.
- [22]And whilst obviously it was a decision ultimately made by the respondent to continue with the representation of the legal representative that they had contacted, it certainly gives rise to a concern that might be held as to the nature or impartial character of advice that was given in relation to these proceedings.
- [23]That, however, might be, as I say, a factor to consider in relation to whether or not it would be appropriate, in the circumstances, to make an order for indemnity costs, but it is, of course, not a matter that, in my assessment, would play upon my mind at all in relation to the consideration of costs.
- [24]Ultimately I have come to the determination in this matter that the appropriate course to follow would not be, because of the unusual character of the offer that was made and the situation that the respondent then found themselves in, albeit one that was not, in my assessment, able to be otherwise rectified than by way of orders that were subsequently obtained, but also in light of the most unusual character of the representation in relation to this matter, that it is not an order that should consider an imposition of indemnity costs. Costs, however, should be paid by the respondent to the applicant, but in my assessment they should be upon the standard basis, if not able to be agreed.
- [25]Accordingly, the orders of the court will be as follows:
- (1)That the respondent pay the applicant’s costs of and incidental to the application, as agreed, and failing agreement, as per the standard basis.