Nicholl Holdings Pty Ltd v Maharaj (No 2)
[2008] QSC 133
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- Unreported Judgment
- Nicholl Holdings Pty Ltd v Maharaj (No 2)[2008] QSC 133
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Nicholl Holdings Pty Ltd v Maharaj (No 2)[2008] QSC 133
Nicholl Holdings Pty Ltd v Maharaj (No 2)[2008] QSC 133
SUPREME COURT OF QUEENSLAND
PARTIES: | NICHOLL HOLDINGS PTY LTD t/a THE DOCTORS AIRLIE BEACH ACN 063 703 748 SAROJ SHANTA MAHARAJ |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Trial |
ORIGINATING COURT: | |
DELIVERED ON: | 16 June 2008 |
DELIVERED AT: | Rockhampton |
HEARING DATE: | On the Papers |
JUDGE: | McMeekin J |
ORDERS: | 1. The plaintiff pay the defendant’s costs, including the reserved costs, on the standard basis on the Supreme Court scale. |
CATCHWORDS | PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF ISSUES – whether ‘special circumstances’ exist for award of costs against a nominally successful plaintiff UCPR r 689 Interchase Corporation Ltd (In Liq) v Grosvenor Hill (Qld) Pty Ltd (No 3) [2003] 1 Qd R 26 applied |
COUNSEL: | P Askin (sol) for the plaintiff K Garner for the defendant |
SOLICITORS: | Robert Nehmer McKee Solicitors for the plaintiff Nicol Robinson Halletts for the defendant |
[1] McMEEKIN J: On 28 May 2008 I gave judgment in this action for the plaintiff in the sum of $209.00.[1] I adjourned the question of the appropriate costs orders to allow the parties the chance to make written submissions which I have now received.
[2] In the action the plaintiff claimed $530,000 for breach of contract, and interlocutory and final injunctions restraining the defendant from carrying on, conducting, or engaging in the business of providing medical services as a general practitioner in competition with the plaintiff for a 12 month period.
[3] An application by the plaintiff for an interlocutory injunction was refused by Cullinane J on 15 February 2008. His Honour ordered that there be a speedy trial and costs were reserved to the trial judge.
[4] The plaintiff effectively lost on all major issues tried before me.
[5] The only success that the plaintiff did have was in relation to a question of construction as to whether the contract required three month’s written notice before the defendant terminated her employment with the plaintiff. The existence and terms of the written contract were not in issue but rather the construction of a term, the wording of which was agreed, was in issue. The total time taken in arguing the construction point was a matter of minutes. The fact that written notice had not been given was not in issue.
[6] There was debate about the damages. The onus of proving damages throughout lay on the plaintiff. The plaintiff called an accountant. The defendant did not dispute the accountant’s calculation of her weekly average gross earnings – it was a simple arithmetical exercise. Nor did she dispute the deductions adopted to arrive at a net figure. The plaintiff then advanced that figure as the weekly multiplier for the three month’s notice period. Effectively I rejected that approach as ignoring several obvious points. Again the time taken with this part of the case was not great. Ms Garner, who appeared for the defendant, cross examined the accountant on an aspect of his report relevant only to the capital sum claimed - an amount that has no relevance to the damages allowed.
[7] The plaintiff submits that it has succeeded in the claim, that the dispute concerning the notice provision (on which it succeeded) was one of two major issues argued, and costs should follow the event. I do not agree with the characterisation of the relevant issue as a major one argued. In my reasons for judgement I said:
“I will hear from counsel as to costs. I remark that despite the judgement in its favour the plaintiff has failed on all major issues argued. I am satisfied that the plaintiff’s witnesses attempted to mislead the court on crucial issues. What should have been a straightforward construction argument became a three day trial.”[2]
[8] Costs ordinarily follow the event unless the court considers another order more appropriate: rule 689 Uniform Civil Procedure Rules 1999.
[9] In Interchase Corporation Ltd (In Liq) v Grosvenor Hill (Qld) Pty Ltd (No 3)[3] McPherson JA considered the history of r 689 and the meaning of the word “event” in the phrase “costs follow the event” in r 689(1). He concluded:
“[84] These authorities show that the structure and language of the new Rule 689(1) has not introduced any marked change in the practice governing awards of costs in Queensland. Costs are, as they were before, in the discretion of the court. They follow the "event" which, when read distributively, means the events or issues, if more than one, arising in the proceedings unless the court makes some other order that is considered "more appropriate". It is not by this intended to suggest that there has been a reversion to a regime under which costs of separate issues must now be determined…..”
[10] I accept that in the ordinary course a plaintiff who has succeeded on one issue can normally expect to at least receive his or her costs of litigating that issue. But there is no necessary rule that that be so.[4] In my view “some other order” than that each party receive its costs on the issue or issues on which they succeeded is more appropriate here.
[11] There are a number of reasons why the undoubted discretion that I have should be exercised in favour of the defendant. In the context of this case the defendant effectively succeeded.[5] The costs incurred by the plaintiff relevant to the limited issues on which the plaintiff succeeded are swamped by the costs that the defendant has had to incur in defeating the claims made against her. The damages that the plaintiff succeeded in winning were nominal. It was guilty of relevant misconduct relating to the litigation in the sense discussed in Oshlack v Richmond River Council[6]. Its success was extremely limited. It subjected the defendant to a three day trial instead of a construction argument – and one that could have been done (and very nearly was done) on the papers. If it is necessary that there be “special circumstances” related to the case[7], as I think that there does to disentitle a successful plaintiff, even a nominally successful one, then they are present here.
[12] It would be grossly unjust in these circumstances to require that the defendant pay costs and not to receive her costs.
[13] The defendant has sought that her costs be paid on the indemnity basis instead of the more usual standard basis. Such an order is rarely made.[8]
[14] Despite there being a strong case for the exercise of the discretion in that way here I do not think it can be justified – the defendant did dispute the issue on which she lost and she was required to pay nominal damages.
[15] I order that the plaintiff pay the defendant’s costs, including the reserved costs, on the standard basis on the Supreme Court scale.
Footnotes
[1] [2008] QSC 99
[2] See [75] of the judgement
[3] [2003] 1 Qd R 26
[4] See for example X & Y v Pal (by her tutor X) (1991) 23 NSWLR 26 applying the principles enunciated by Toohey J in Hughes v Western Australian Cricket Assocn. Inc (1986) ATPR 40-748
[5] Even if that were not so there is no rule that a successful party should not have to bear the costs of the unsuccessful one: Oshlack v Richmond River Council (1998) 193 CLR 72 at p 88 per Gaudron and Gummow JJ
[6] (1998) 193 CLR 72 per McHugh J at p97 citing the judgement of Devlin J in Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 at 874; Brennan CJ at p 75 agreeing generally
[7] Oshlack at p 120 per Kirby J citing Donald Campbell & Co v Pollak [1927] AC 732 at 812
[8] Kirby J described such an order as “extremely rare”: Oshlack at p 127