Brennan v Carr - [2007] QDC 177

DISTRICT COURT OF QUEENSLAND

CITATION: Brennan v Carr [2007] QDC 177

PARTIES:
Michael Brennan and Wendy Brennan
(Applicants)

And

Joshua Kevin Carr
(Respondent)

FILE NO/S: 495/06

DIVISION: Civil

PROCEEDING: Application

ORIGINATING COURT: District Court Townsville

DELIVERED ON: 25 July 2007

DELIVERED AT: Townsville

HEARING DATE: 18 June 2007

JUDGE: Durward SC DCJ

ORDERS:
1. Judgment be entered for the Plaintiff’s against the Defendant in the sum of $52,737.58 together with interest in the sum of $7,334.14.

2. The Defendant pay the Plaintiff’s costs of and incidental to the Notices to Admit and the Application on an indemnity basis.

3. The Defendant pay the balance of the Plaintiff’s costs of and incidental to the action on the standard basis.

CATCHWORDS: Claim for damages – Liability admitted – quantum in issue – Respondent served with Notices to Admit quantum and did not respond - Whether indemnity costs should be awarded in respect of the claim and application – No appearance by respondent on application - Whether conduct was so “unreasonable” as to take it outside the usual discretion as to the basis upon which costs ordered to successful applicant.

CITED CASES Colgate Palmolive v Cussons Pty Ltd (1993) ALR 248; Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 141 ALR 727; Naomi Marble & Granite Pty Ltd v FAI General Insurance Comp. Ltd (unreported SCQ 12.06.98); Re Talk Finance & Insurance Services Pty Ltd (1994) 1 Qd R 558; Afzal v Ford Motor Co Ltd (1994) 4 All ER 770; Willis v Redbridge Health Authority (1996) 3 All ER 114; Police Association of New South Wales v Higgins (1997) FCA 4/6/1997; Vignoli v Sydney Harbour Casino Pty Ltd (1999) NSWSC 1227; Boardmore v Franklins Management Services Pty Ltd (2003) 1 Qd R 1; Bateman v Newhaven Park Stud Ltd (2004) NSWSC 875; Kingsheath Club of the Clubs Limited (in liq) (2003) FCA 1589.

COUNSEL: Mr C White for the Applicant
No appearance for Respondent

SOLICITORS: Tresscox Lawyers for the Applicant
Connelly Suthers (seeking leave to withdraw for the Respondent)

APPLICATION

This is an application for summary judgment. The respondent (“the defendant”) drove a car into the house of the applicant’s (“the plaintiff’s”) and the claim is for damage to the house, with interest and costs.

The issue primarily is whether this is a case for an award of indemnity costs in respect of both the claim and the application. The judgment was reserved for a determination of that issue.

The claim was filed on 15 December 2006. The defence was filed on 30 January 2007. The Application was filed on 24 May 2007. The defendant admitted liability in his Defence but did not admit the quantum of damages.

The plaintiffs served Notice to admit facts and Notice to admit documents on 18 April 2007. There was no response to the Notices. Accordingly pursuant to Rule 189 of the UCPR there was a deemed admission of the subject facts and documents. Hence quantum is no longer in…

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 Brennan v Carr

Details

AGLC: Brennan v Carr [2007] QDC 177
Case: [2007] QDC 177
Decision Date: 25 July 2007

CaseChat Overview and Summary

In the case of Brennan v Carr, the plaintiff sought damages from the defendant, who admitted liability. The sole issue before the court was the amount of damages. The defendant was served with notices to admit the quantum of damages but failed to respond. The court had to determine whether indemnity costs were appropriate in respect of the claim and the application, especially given the defendant's lack of appearance on the application. Additionally, the court assessed whether the defendant's conduct was so unreasonable that it warranted costs being awarded on an indemnity basis, which is outside the usual discretion as to the basis upon which costs are ordered in favour of the successful applicant.

The court ruled that the defendant's failure to respond to the notices to admit the quantum of damages constituted unreasonable conduct. This conduct justified the award of indemnity costs for the claim and the application. Given the defendant's absence and non-participation in the proceedings, the court found that the defendant's conduct warranted costs on an indemnity basis. The court considered the extent of the plaintiff's costs in relation to the notices to admit and the application, and determined that the defendant should bear these costs.

The court further considered the remaining costs of the action and decided that the balance of these costs should be awarded on the standard basis. The court's final orders included a judgment in favour of the plaintiff for the specified sum of damages, with interest. Additionally, the defendant was ordered to pay the plaintiff's costs of and incidental to the notices to admit and the application on an indemnity basis, and the balance of the costs of the action on the standard basis.

Orders

Orders of the court

1. Judgment be entered for the Plaintiff’s against the Defendant in the sum of $52,737.58 together with interest in the sum of $7,334.14.

2. The Defendant pay the Plaintiff’s costs of and incidental to the Notices to Admit and the Application on an indemnity basis.

3. The Defendant pay the balance of the Plaintiff’s costs of and incidental to the action 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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Brennan v Carr [2007] QDC 177
PARTIES:	Michael Brennan and Wendy Brennan (Applicants) And Joshua Kevin Carr (Respondent)
FILE NO/S:	495/06
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court Townsville
DELIVERED ON:	25 July 2007
DELIVERED AT:	Townsville
HEARING DATE:	18 June 2007
JUDGE:	Durward SC DCJ
ORDERS:	1. Judgment be entered for the Plaintiff’s against the Defendant in the sum of $52,737.58 together with interest in the sum of $7,334.14. 2. The Defendant pay the Plaintiff’s costs of and incidental to the Notices to Admit and the Application on an indemnity basis. 3. The Defendant pay the balance of the Plaintiff’s costs of and incidental to the action on the standard basis.
CATCHWORDS:	Claim for damages – Liability admitted – quantum in issue – Respondent served with Notices to Admit quantum and did not respond - Whether indemnity costs should be awarded in respect of the claim and application – No appearance by respondent on application - Whether conduct was so “unreasonable” as to take it outside the usual discretion as to the basis upon which costs ordered to successful applicant.
CITED CASES	Colgate Palmolive v Cussons Pty Ltd (1993) ALR 248; Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 141 ALR 727; Naomi Marble & Granite Pty Ltd v FAI General Insurance Comp. Ltd (unreported SCQ 12.06.98); Re Talk Finance & Insurance Services Pty Ltd (1994) 1 Qd R 558; Afzal v Ford Motor Co Ltd (1994) 4 All ER 770; Willis v Redbridge Health Authority (1996) 3 All ER 114; Police Association of New South Wales v Higgins (1997) FCA 4/6/1997; Vignoli v Sydney Harbour Casino Pty Ltd (1999) NSWSC 1227; Boardmore v Franklins Management Services Pty Ltd (2003) 1 Qd R 1; Bateman v Newhaven Park Stud Ltd (2004) NSWSC 875; Kingsheath Club of the Clubs Limited (in liq) (2003) FCA 1589.
COUNSEL:	Mr C White for the Applicant No appearance for Respondent
SOLICITORS:	Tresscox Lawyers for the Applicant Connelly Suthers (seeking leave to withdraw for the Respondent)