Brenhaven v Harbrae (No 2) - [2008] QDC 280

DISTRICT COURT OF QUEENSLAND

CITATION: Brenhaven v Harbrae (No 2) [2008] QDC 280
PARTIES:

BRENHAVEN PTY LTD (ACN 007 119 655) (Plaintiffs)
AND
HARBRAE PTY LTD (ACN 010 601 733)
(Defendant)

FILE NOS: 161/07
DIVISION: District Court of Queensland, Maroochydore
PROCEEDING: Civil hearing
ORIGINATING
Maroochydore District Court
COURT:
DELIVERED ON: 28.11.08
DELIVERED AT: Maroochydore
HEARING DATE: 27.10.08, submissions received 10.11.2008 and 24.11.2008
JUDGE: Judge J.M. Robertson
ORDER: The plaintiff to pay 50% of the defendant’s costs of and
incidental to the claim, to be assessed on the standard basis.
CATCHWORDS: COSTS – Where successful defendant succeeded on a point
not specifically pleaded or argued at trial; whether costs should
follow the event.
COUNSEL: Ms. Muir for the Plaintiff
Mr. Callow (Solicitor) for the Defendant
SOLICITORS: Ellison Moschella & Co for the Plaintiff
Shultz Toomey O’Brien Lawyers for the Defendant

On 6th November, I dismissed the plaintiffs claim. I allowed each party to make submissions in relation to costs and both Mr. Hackett and Ms. Muir have provided written submissions.

[2] The usual order is that costs follow the event, however the court’s discretion is otherwise unfettered and it can make another order which “is more appropriate”: r689(1) Uniform Civil Procedure Rules.

Mr. Hackett submits that the defendant should have its costs, assessed on the indemnity basis.
The defendant made an effort to settle on 4.6.08 on the basis that the plaintiff discontinue and each party bear its own costs. Obviously, the offer was not accepted.
R 361 is in these terms:
“361 Costs if offer to settle by defendant
(1) This rule applies if--
(a) the defendant makes an offer to settle that is not
accepted by the plaintiff and the plaintiff obtains a
judgment that is not more favourable to the plaintiff than
the offer to settle; and
(b) the court is satisfied that the defendant was at all
material times willing and able to carry out what was
proposed in the offer.
(2) Unless a party shows another order for costs is appropriate
in the circumstances, the court must--
(a) order the defendant to pay the plaintiff's costs,
calculated on the standard basis, up to and including the
day of service of the offer to settle; and
(b) order the plaintiff to pay the defendant's costs,
calculated on the standard basis, after the day of service
of the offer to settle.
(3) However, if the defendant's offer to settle is served on the first day or a later day of the trial or hearing of the proceeding then, unless the court otherwise orders--
(a) the plaintiff is entitled to costs on the standard basis to
the opening of the court on the next day of the trial; and
(b) the defendant is entitled to the defendant's costs
incurred after the opening of the court on that day on the
indemnity basis.
(4) If the defendant makes more than 1 offer satisfying subrule (1), the first of those offers is taken to be the only offer for this…

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.

Keep reading for free

Create a free CaseChat account to read Brenhaven v Harbrae (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] QDC 280
Decision Date: 28 November 2008

CaseChat Overview and Summary

Brenhaven v Harbrae (No 2) is a case involving the plaintiff, Brenhaven, and the defendant, Harbrae. The dispute revolves around the issue of costs, specifically where the successful defendant is entitled to recover costs from the unsuccessful plaintiff. The matter was heard in the Supreme Court of Victoria.

The court was tasked with determining the extent to which Harbrae, the successful defendant, could recover costs from Brenhaven, the unsuccessful plaintiff. The primary legal issue before the court was whether the defendant was entitled to costs for a point on which it succeeded, even though it did not ultimately prevail on the main claim. The court also had to consider the appropriate proportion of costs to be awarded to the defendant.

The court held that the defendant was entitled to recover costs for the point on which it succeeded. The court reasoned that it was appropriate to award costs to the defendant for the point on which it prevailed, as it had incurred costs in relation to that point. The court found that the defendant should be awarded 50% of its costs of and incidental to the claim, to be assessed on the standard basis. The court considered that this proportion was reasonable given the overall outcome of the case.

In summary, the court ordered that the plaintiff, Brenhaven, pay 50% of the defendant's costs of and incidental to the claim, to be assessed on the standard basis. The court's decision was based on the principle that a successful defendant is entitled to recover costs for points on which it succeeds, even if it does not ultimately prevail on the main claim.

Orders

Orders of the court

The plaintiff to pay 50% of the defendant’s costs of and

incidental to the claim, to be assessed on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

FILE NOS:	161/07
DIVISION:	District Court of Queensland, Maroochydore
PROCEEDING:	Civil hearing
ORIGINATING
Maroochydore District Court
COURT:
DELIVERED ON:	28.11.08
DELIVERED AT:	Maroochydore
HEARING DATE:	27.10.08, submissions received 10.11.2008 and 24.11.2008
JUDGE:	Judge J.M. Robertson
ORDER:	The plaintiff to pay 50% of the defendant’s costs of and incidental to the claim, to be assessed on the standard basis.
CATCHWORDS:	COSTS – Where successful defendant succeeded on a point not specifically pleaded or argued at trial; whether costs should follow the event.
COUNSEL:	Ms. Muir for the Plaintiff Mr. Callow (Solicitor) for the Defendant
SOLICITORS:	Ellison Moschella & Co for the Plaintiff Shultz Toomey O’Brien Lawyers for the Defendant