Aubrey v Armit - [2005] QDC 382

DISTRICT COURT OF QUEENSLAND

CITATION:

Aubrey v Armit & Anor [2005] QDC 382

PARTIES:

THOMAS MARK AUBREY

(Plaintiff)

v

DON ARMIT

(First Defendant)

&

LEE, TURNBULL & CO.

(Second Defendant)

FILE NO/S:

1022/04

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

8^th December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

30^th November 2005

JUDGE:

FORDE DCJ

ORDER:

1. It is ordered that the defendants do pay the plaintiff’s costs occasioned by the adjournment of the trial on 16 August 2004.

2. It is ordered that the plaintiff do pay to the defendants the costs to 18 December 2003 occasioned by the allegation in paragraphs 3 to 13 of the prayer for relief in the Statement of Claim filed on 8 December 2000.

3. It is ordered that the defendants do pay to the plaintiff the costs of and incidental to the action to be assessed on the appropriate District Court scale where the amount recovered exceeds $50,000.

CATCHWORDS:

INDEMNITY COSTS – Categories – Discretionary factors to be considered – “unusual or special” feature - Where late admission of liability – Appropriate costs scale

Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd (1986) 71 ALR 287

Di Carlo v Dubois & Ors [2003] QCA 225

Colgate-Palmolive Company and Anor v Cussons (1993) 46 FCR 225

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Ors (1988) 81 ALR 397

Griffiths v Evans [1953] 2 All ER 1364

Mitchell v Pacific Dawn Pty Ptd [2003] QSC 179

Notras & Anor v Hugh[2003] NSWSC 919

Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd FCA 3/5/91

COUNSEL:

Mr K Fleming QC for the Plaintiff

Mr C Murdoch for the Defendants

SOLICITORS:

Dempseys Solicitors

Hyland Lawyers

Introduction

The plaintiff commenced this action against his former solicitor’s, the first and second defendants. On the second day of trial, the action was settled whereby the defendants agreed to pay a judgment sum of $47,000.00 to the plaintiff plus interest. The defendants had acted for the plaintiff on the sale of his lease to a third party. The value of the sale was to be $50,000.00. The judgment sum represented that sum less some adjustments which are not relevant for present consideration.

There was an argument in relation to the amount of interest payable. Reasons have been given in that regard. Interest was allowed at the rate of 8% per annum from January 2001 and that the total sum be paid by 21 December 2005. An offer of $60,000.00 had been made by the plaintiff. However, pursuant to rule 362(2) of the UCPR, interest is not allowed from the date of the offer in considering the amount obtained. The judgment for the purposes of r360 is $56,394.85. Interest on the sum of $47,000.00 was allowed plus interest of 8% from 15 January 2001 to 16 July 2003. The net effect of this is that the plaintiff recovered a sum less favourable than the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aubrey v Armit

Details

AGLC: Aubrey v Armit [2005] QDC 382
Case: [2005] QDC 382
Decision Date: 8th December 2005

CaseChat Overview and Summary

The matter of Aubrey v Armit involved a dispute between the plaintiff and the defendants regarding indemnity costs following a trial in the Supreme Court of Victoria. The plaintiff sought costs associated with the adjournment of the trial, while the defendants were held liable for costs up until a specific date in relation to certain allegations in the Statement of Claim. The court was tasked with determining the appropriate costs to be awarded to each party, considering factors such as the late admission of liability by the defendants and the overall outcome of the case.

The central legal issue before the court was the assessment of indemnity costs in light of the defendants' late admission of liability. The court had to decide whether the defendants' admission of liability was an unusual or special feature that warranted a departure from the usual costs scale. Additionally, the court needed to determine the appropriate costs scale to apply, considering the amount recovered by the plaintiff.

In its judgment, the court found that the defendants' late admission of liability did not constitute an unusual or special feature that would justify departing from the usual costs scale. However, the court acknowledged the late admission as a discretionary factor to be considered in the overall assessment. The court concluded that the appropriate costs scale to apply was the District Court scale, where the amount recovered by the plaintiff exceeded $50,000. The court ordered that the defendants pay the plaintiff's costs occasioned by the adjournment of the trial and that the plaintiff pay the defendants' costs up until a specific date. Finally, the court ordered that the defendants pay the plaintiff the costs of and incidental to the action, to be assessed on the appropriate District Court scale where the amount recovered exceeds $50,000.

Orders

Orders of the court

1. It is ordered that the defendants do pay the plaintiff’s costs occasioned by the adjournment of the trial on 16 August 2004.

2. It is ordered that the plaintiff do pay to the defendants the costs to 18 December 2003 occasioned by the allegation in paragraphs 3 to 13 of the prayer for relief in the Statement of Claim filed on 8 December 2000.

3. It is ordered that the defendants do pay to the plaintiff the costs of and incidental to the action to be assessed on the appropriate District Court scale where the amount recovered exceeds $50,000.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Aubrey v Armit & Anor [2005] QDC 382
PARTIES:	THOMAS MARK AUBREY (Plaintiff) v DON ARMIT (First Defendant) & LEE, TURNBULL & CO. (Second Defendant)
FILE NO/S:	1022/04
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	8^th December 2005
DELIVERED AT:	Brisbane
HEARING DATE:	30^th November 2005
JUDGE:	FORDE DCJ
ORDER:	1. It is ordered that the defendants do pay the plaintiff’s costs occasioned by the adjournment of the trial on 16 August 2004. 2. It is ordered that the plaintiff do pay to the defendants the costs to 18 December 2003 occasioned by the allegation in paragraphs 3 to 13 of the prayer for relief in the Statement of Claim filed on 8 December 2000. 3. It is ordered that the defendants do pay to the plaintiff the costs of and incidental to the action to be assessed on the appropriate District Court scale where the amount recovered exceeds $50,000.
CATCHWORDS:	INDEMNITY COSTS – Categories – Discretionary factors to be considered – “unusual or special” feature - Where late admission of liability – Appropriate costs scale Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd (1986) 71 ALR 287 Di Carlo v Dubois & Ors [2003] QCA 225 Colgate-Palmolive Company and Anor v Cussons (1993) 46 FCR 225 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Ors (1988) 81 ALR 397 Griffiths v Evans [1953] 2 All ER 1364 Mitchell v Pacific Dawn Pty Ptd [2003] QSC 179 Notras & Anor v Hugh[2003] NSWSC 919 Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd FCA 3/5/91
COUNSEL:	Mr K Fleming QC for the Plaintiff Mr C Murdoch for the Defendants
SOLICITORS:	Dempseys Solicitors
Hyland Lawyers