Stariha v K & T Earthmoving Pty Ltd (No 2)
[2023] QDC 150
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
- Stariha v K & T Earthmoving Pty Ltd (No 2)[2023] QDC 150
- Add to List
Stariha v K & T Earthmoving Pty Ltd (No 2)[2023] QDC 150
Stariha v K & T Earthmoving Pty Ltd (No 2)[2023] QDC 150
DISTRICT COURT OF QUEENSLAND
CITATION: | Stariha v K & T Earthmoving Pty Ltd (No 2) [2023] QDC 150 |
PARTIES: | JOHN STARIHA (appellant) v K & T EARTHMOVING PTY LTD ACN 144 074 546 (respondent) |
FILE NO/S: | 2349/222 |
DIVISION: | District Court of Queensland |
PROCEEDING: | Civil appeal |
ORIGINATING COURT: | Magistrates Court Brisbane |
DELIVERED ON: | 18 August 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 May 2023 and further written submissions as to costs |
JUDGES: | Dearden DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – APPEAL ALLOWED – COSTS – STANDARD OR INDMNITY BASIS – where the respondent seeks a grant of an indemnity certificate pursuant to the Appeals Cost Fund Act 1973 (Qld) – whether the learned magistrate fell into error through no fault of the respondent – where there was a Calderbank offer made |
COUNSEL: | J R Moxon for the appellant R J Bull for the respondent |
SOLICITORS: | Shand Taylor Lawyers for the appellant McInnes Wilson Lawyers for the respondent |
- Introduction
- [1]On 23 June 2023, this court delivered a decision in the appeal and made the following orders:
- 1.The appeal be allowed.
- 2.The orders of the Magistrates Court made on 26 August 2022 be set aside and in their place it be ordered that:
- (i)The plaintiff’s application filed 9 August 2022 be dismissed;
- (ii)The proceeding be dismissed.
- 3.The respondent pay the appellant’s costs on a standard basis.
- 4.Unless the respondent provides written submissions on or before 7 July 2023 (at) 4pm, if such submissions are provided the appellant may provide submissions in reply on or before 4pm 14 July 2023.
- [2]Upon delivery of the decision, this court invited submissions from the appellant and the respondent on costs. The respondent filed an outline of argument on 6 July 2023; the appellant filed submissions on costs on 14 July 2023 and filed an affidavit of Roderick Ernest O'Sullivan on the same date; the respondent filed a further outline of argument on 24 July 2023.
- [3]The respondent in its initial outline of argument on costs seeks the grant of a certificate pursuant to the Appeal Costs Fund Act 1973 (Qld) s 15 which relevantly provides:
- “15Grant of indemnity certificate
- (1)…
- (2)Where an appeal against the decision of a court to the District Court on a question of law succeeds, the District Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal.”
- [4]The respondent identifies that the award of an indemnity certificate is within the unfettered discretion of the court, but the court must be convinced that the statutory pre-requisites have been satisfied and that it is justified to grant the certificate, which can only be granted if the appeal succeeded on a question of law and where it is appropriate for the respondent to be indemnified in costs.[1]
- [5]The issue is whether the unsuccessful respondent has, through no fault of their own, become liable to meet a costs order. It then becomes necessary to identify whether the liability for costs has occurred as a result of an error of law on the part of the lower court, and whether that error is due to or in some way arising from the conduct of the respondent.[2]
- [6]The respondent’s submission is that the learned magistrate fell into error through no fault on the part of the respondent who, it is asserted, did not engage in any conduct or press any incorrect submissions resulting in the error of law by the learned magistrate below.[3]
- [7]The appellant, on the other hand, while indicating that he neither consents to nor opposes the grant of an indemnity certificate pursuant to Appeal Costs Fund Act 1973 s 15(2), submits that the learned magistrate’s error in distinguishing Ure v Robertson [2017] 2 Qd R 556 arose from the learned magistrate’s conclusion that the application for leave to amend the respondent’s claim, and the subsequent order of Magistrate Crawford granting leave to amend that claim, were “steps” within the meaning of Uniform Civil Procedure Rules (UCPR) r 389, propositions that the respondent positively supported, contrary to the reasoning of this court on appeal.[4]
- [8]The appellant further submits that although the respondent did not make submissions that Ure should be distinguished as it ultimately was by the learned magistrate below, it did support the foundational propositions which led the learned magistrate below to fall into error. In any event, the appellant submits that even if a certificate is granted, the procedure is that the respondent must first pay the appellant’s costs, as assessed or agreed, and then approach the Appeal Costs Board for a certificate.[5]
- [9]The appellant submits that the learned magistrate below erred in the exercise of his discretion in not dismissing the proceeding and also, it follows, erred in not awarding the appellant his costs. That, it is submitted, is an error which should be corrected on appeal.
- [10]The appellant also submits that the respondent should be ordered to pay the appellant’s costs in the Magistrates Court on the indemnity basis. The basis for that submission is that a Calderbank offer was made in correspondence dated 9 June 2022.[6] In that correspondence, the appellant offered a substantial compromise (he offered to pay the respondent $15,000). That offer was rejected. The appellant submits that the rejection was an “imprudent refusal of an offer of compromise” and enlivens the discretion of this court to award indemnity costs.[7]
- [11]The appellant’s submission is that either an order should be made for indemnity costs for the entire proceedings below, or in the alternative, that the respondent pay the appellant’s costs of the proceedings in the Magistrates Court on the standard basis up to 9 June 2022 and on the indemnity basis thereafter, or alternatively (if not persuaded of either of those first alternatives), that the respondent pay the appellant’s costs of the proceedings in the Magistrates Court on the standard basis.
- [12]The respondent submits that the appellant’s compromise ($15,000) was neither substantial nor generous assessed against the plaintiff’s total claim of $50,474.74 plus interest on costs. Although that, on its face, may be correct, that had to be assessed by the respondent in the light of the prospects that the respondent might be refused leave to proceed, and therefore assessed against the prospect of no success in the action continuing.
- [13]The respondent submits that it was not in a position at the date of the Calderbank offer to fully evaluate its prospects of success because the appellant had not foreshadowed making an application to dismiss the proceeding for want of prosecution (UCPR r 280). However, in my view, the appellant had clearly identified the difficulties that the respondent would have proceeding pursuant to UCPR r 389 and it was not necessary for the appellant to identify all of the asserted flaws in the respondent’s position at that stage. Similarly, the fact that the correspondence failed to address the issue in respect of the Magistrates Court order made 4 February 2022 does not, in my view, contribute to the respondent’s decision not being unreasonable. A careful analysis of the respondent’s situation should have identified the risks in respect of the issue of what was a “step” in the context of the Magistrate Court proceedings.
- [14]In my view, the appellant’s letter dated 8 June 2022[8] clearly identified the central issue, namely that the respondent required leave to proceed pursuant to UCPR r 389, and the Calderbank letter of 9 June 2022[9]more comprehensively identified the difficulties with the respondent’s case based on delay, the difficulties with the loan agreement, the difficulties in respect of evidence in the absence of a written loan agreement, and the issue in respect of progressing the matter without obtaining the court’s leave.
- [15]In the light of that clearly articulated set of reasons for making a Calderbank offer, the respondent’s refusal of the offer to compromise was, in my view, “imprudent” and in the circumstances, I consider it appropriate to order that the respondent pay the appellant’s costs of the proceedings in the Magistrates Court on the standard basis up to 9 June 2022, and on the indemnity basis thereafter.
- [16]The respondent was wholly unsuccessful on appeal. I further order that the respondent pay the appellant’s costs of the appeal on a standard basis.
- [17]In the circumstances, I accept that the respondent was responsible at least in part for leading the learned magistrate into error in distinguishing Ure v Robinson [2017] 2 Qd R 556 by submitting that the application to Magistrate Crawford and the order of 4 February 2022 were “steps” within the meaning of UCPR r 389, and also arguing that the respondent did not require leave to proceed.
- [18]It follows then that the application for a certificate pursuant to the Appeal Costs Fund Act 1973 is refused.
Orders
- Respondent pay the appellant’s costs of the proceedings in the Magistrates Court on the standard basis up to 9 June 2022, and on the indemnity basis thereafter.
- Respondent pay the appellant’s costs of the appeal on a standard basis.
- Application for a certificate pursuant to the Appeal Costs Fund Act 1973 is refused.
Footnotes
[1]Richards v Faulls Pty Ltd [1971] WAR 129, 138; Reeve v Fowler [1965] NSWR 110, 111; Acquilina v Dairy Farmers Co-Operative Milk Co Ltd (1965) NSWR 772, 774; Lachlan v Hartley [1980] Qd R 149.
[2]Acquilina v Dairy Farmers Co-operative Milk Co Ltd (1965) NSWR 772, 774, Brisbane City Council v Ferro Enterprises Pty Ltd [1976] Qd R 332; Vella v Larson [1982] Qd R 298.
[3] Respondent’s outline of argument – costs (filed 6 July 2023 [8]-[10]).
[4]Stariha v K&T Earthmoving Pty Ltd [2023] QDC 133 [24].
[5]Appeal Costs Fund Act s 16(1)(a).
[6] Exhibit REO-1, Doc#2, Affidavit of Roderick Ernest O'Sullivan affirmed 14 July 2023.
[7]Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, 233.
[8] Exhibit REO-1, Doc#2, Affidavit of Roderick Ernest O'Sullivan affirmed 14 July 2023.
[9] Exhibit REO-1, Doc#2, Affidavit of Roderick Ernest O'Sullivan affirmed 14 July 2023.