Quinn v Descon Group Australia Pty Ltd & Anor (No. 2)
[2023] QDC 101
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- Unreported Judgment
- Quinn v Descon Group Australia Pty Ltd & Anor (No. 2)[2023] QDC 101
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Quinn v Descon Group Australia Pty Ltd & Anor (No. 2)[2023] QDC 101
Quinn v Descon Group Australia Pty Ltd & Anor (No. 2)[2023] QDC 101
DISTRICT COURT OF QUEENSLAND
CITATION: | Quinn v Descon Group Australia Pty Ltd & Anor (No. 2) [2023] QDC 101 |
PARTIES: | ANTHONY QUINN (applicant) v DESCON GROUP AUSTRALIA PTY LTD ACN 625 771 075 (first respondent) and DANNY ISAAC (second respondent) |
FILE NO: | 76/23 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court Brisbane |
DELIVERED ON: | 9 June 2023 |
DELIVERED AT: | Brisbane |
JUDGE: | Farr SC, DCJ |
ORDER: |
|
CATCHWORDS: | DEEDS – OTHER MATTERS – where the Court gave judgment for the applicant on his claim and dismissed the respondents’ counterclaim – where the plaintiff seeks costs of the application and the proceeding on the indemnity basis, fixed in the sum of $50,000 – where the Settlement Deed provided that if the defendants were in default they would pay any legal costs incurred by the plaintiff on a full indemnity basis – where the plaintiff also made an offer to resolve the proceedings – where the defendants do not resist an order for costs on the indemnity basis – whether the rejection of the offer was unreasonable – where the defendants oppose an order for costs in a fixed amount. |
LEGISLATION: | Civil Proceedings Act 2011 (Qld) s 58 Uniform Civil Procedure Rules 1999 (Qld) r 687 |
CASES: | ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2008] 2 Qd R 298 Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435 IBM Australia Ltd v State of Queensland [2016] QSC 70 J&D Rigging Pty Ltd v Agripower Australia Ltd & Ors [2014] QCA 23 Quinn v Descon Group Australia Pty Ltd & Anor [2023] QDC 88 |
COUNSEL: | C Templeton for the applicant |
SOLICITORS: | ACLG Lawyers for the applicant Kanther Law for the respondents |
Background
- [1]On 30 May 2023, the Court gave judgment for the applicant (hereinafter referred to as the plaintiff) on his claim and dismissed the respondents’ (hereinafter referred to as the defendants) counterclaim.[1] At that time the matter was adjourned to allow the parties to make submissions as to the form of further orders including an order for costs.
Submissions
- [2]The plaintiff seeks an order that the defendants pay his costs of the application and the proceeding on the indemnity basis, fixed in the sum of $50,000. He submits that there are two bases for an award of indemnity costs:
- (a)it is consistent with the parties’ agreement; and
- (b)the plaintiff beat a Calderbank offer, which was unreasonably refused.
- [3]By cl 6.4 of the Settlement Deed, the defendants agreed that if they were in default, they would pay any legal costs incurred by the plaintiff “on a full indemnity basis”. While a contractual provision does not confine a Court in the exercise of its discretion, that discretion will usually be exercised consistently with such a provision.[2] The plaintiff submits that it should be so exercised in the present case because the defendants’ approach was obstructionist and demonstrably unreasonable,[3] and the plaintiff’s case was overwhelming.[4]
- [4]The plaintiff also made an offer to resolve the proceeding by letter dated 8 February 2023.[5] In short, the offer was that the defendants pay the plaintiff $170,000 in return for which the plaintiff would participate in the photoshoot and discontinue the proceedings.
Consideration
- [5]The critical question as to whether indemnity costs should be awarded is whether the rejection of the offer was unreasonable.[6] In determining that issue the Court will ordinarily have regard to the considerations such as those set out in Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435 at 442.
- [6]The plaintiff has submitted that in addressing those considerations:
- (a)the offer was made early on in the proceedings, thereby giving a good opportunity to resolve the dispute early without adding to the costs burden;
- (b)although the time allowed to consider the offer was only five days, which is shorter than the usual 14 days required for a “rules offer”, it was nevertheless an ample period of time to allow such consideration given the simplicity of the dispute and the terms of the offer;
- (c)the compromise was not significant (involving payment of $150,000 claimed plus some amount for costs), although it did involve the plaintiff participating in the photoshoot, which the defendants are now not capable of obtaining. It is submitted that the lack of compromise must be viewed in the context of the plaintiff’s prospects of success;
- (d)the plaintiff’s prospects of success when the offer was made were overwhelming; and
- (e)the offer was expressed clearly and indicated that the defendants were liable to pay costs on the indemnity basis.
- [7]Relevantly, the defendants do not resist the plaintiff’s submission for there to be an order for costs on the indemnity basis.
- [8]Accordingly, such an order is appropriate.
- [9]The defendants oppose the plaintiff’s submissions with respect to the fixing of an order for costs on the basis that:
- (a)the amount sought by the plaintiff is unreasonably excessive in light of the limited steps that have been taken in the proceedings;
- (b)there is inadequate evidence before the Court to allow the Court to estimate what might be logical, fair and reasonable as an estimate for costs; and
- (c)in the absence of such evidence the defendants would be prejudiced by the making of such an order.
- [10]Rule 687(2)(c) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) empowers the Court to fix costs. The Court will endeavour to fix costs in appropriate cases where it can be confident that it can do so on a reliable basis and to avoid undue delay and expense.[7]
- [11]The plaintiff submits that it is both possible and desirable to fix costs in the present case for the following reasons:
- (a)the proceeding was decided summarily;
- (b)the factual scope of the proceeding was narrow with no facts in real dispute;
- (c)there is reliable evidence as to the quantum of the plaintiff’s costs;
- (d)fixing costs will save the parties’ time, trouble and delay of an assessment; and
- (e)evidence is before the Court that suggests that other creditors are circling the first defendant, so the plaintiff has an interest in having his entitlement to costs resolved quickly.[8]
- [12]The evidence of Mr Delaney is that the plaintiff’s costs of the application and costs of the proceeding total $64,824.21.[9] He has deposed[10] that, based on his experience, the plaintiff could expect to receive about 85 per cent of that sum on an indemnity costs order (around $55,100). It has been submitted that by adopting a slightly more conservative approach, an order that the defendants pay the plaintiff’s costs of the application and the proceeding on the indemnity basis fixed in the sum of $50,000 would be appropriate in all the circumstances.
- [13]The defendants resist an order for costs in a fixed amount for the following reasons:
- (a)the plaintiff has not provided any evidence by an independent costs assessor of the costs incurred by the plaintiff;
- (b)copies of client agreements or invoices sent to the plaintiff have not been provided;
- (c)there is no evidence as to the rates charged by the plaintiff’s solicitors;
- (d)there is no documentary evidence as to the costs allegedly incurred in the attempted enforcement of the Settlement Deed between 20 December 2022 and 31 December 2022; and
- (e)the amounts claimed are excessive in the circumstances.
- [14]The plaintiff disputes that the amounts claimed are excessive.
- [15]In my view, the material before the Court does not allow for the conclusion that the fees charged were not excessive. That is not to say however, that they were. The Court is simply not in a position to determine that issue. Accordingly, it is appropriate that costs should be agreed or assessed.
Order
- 1.The judgment of the Court is that the first defendant and second defendant pay to the plaintiff the amount of $174,670.91, being the judgment amount of $169,500 plus $5,170.91 interest calculated from the date the cause of action arose to the date of judgment, pursuant to s 58 of the Civil Proceedings Act 2011 (Qld); and
- 2.The first defendant and the second defendant are to pay the plaintiff’s costs of this application to be agreed or assessed on the indemnity basis.
Footnotes
[1] Quinn v Descon Group Australia Pty Ltd & Anor [2023] QDC 88.
[2] IBM Australia Ltd v State of Queensland [2016] QSC 70 at [6].
[3] Reasons, para [60].
[4] Reasons, para [63].
[5] Affidavit of Delaney, Exhibits, p. 9.
[6] J&D Rigging Pty Ltd v Agripower Australia Ltd & Ors [2014] QCA 23 at [5].
[7] See practice direction 3/2007 and ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2008] 2 Qd R 298 at [32].
[8] Affidavit of Delaney, para 18.
[9] Affidavit of Delaney, para 17.
[10] Affidavit of Delaney, para 18.