Burgess, Adam Graham v Dazeley Engineering
[1999] TASSC 34
•31 March 1999
[1999] TASSC 34
PARTIES: BURGESS, Adam Graham
v
DAZELEY ENGINEERING
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: BDR LCA 2/1999
DELIVERED: 31 March 1999
HEARING DATE/S: 19 March 1999
JUDGMENT OF: Cox CJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant: M Dickinson
Respondent: G F M Williams
Solicitors:
Appellant: McGrath & Co
Respondent: Walsh Day Fitzgerald
Judgment category classification:
Judgment ID Number: [1999] TASSC 34
Number of pages: 2
Serial No 34/1999
File No BDR LCA 2/1999
ADAM GRAHAM BURGESS v DAZELEY ENGINEERING
REASONS FOR JUDGMENT COX CJ
31 March 1999
The appellant was the defendant in a Court of Requests action brought by the respondent seeking the recovery of $5,000 for work and labour done and materials supplied under two agreements in respect of alterations to a boat. The respondent claimed that by the first agreement, certain work was to be done at an estimated price of $2,000 and that by the second, further works were agreed to be done at an unspecified price. It was further claimed that there was an implied term that the appellant would pay a reasonable price and that such a price amounted to $7,318.74 of which the appellant, it seems to have been common ground, had only paid $2,000. The respondent sued for the balance and abandoned the excess over $5,000. The appellant instituted a counterclaim, but that document was not before me on the hearing of the appeal, and I was informed that it had been discontinued some months before the case came on for hearing. There may have been some inadequacy in the form of the notice of discontinuance but, it was again common ground that on the hearing, no evidence was adduced by way of quantifying a counterclaim and the parties treated it as abandoned. The principal issue was whether the contract was a fixed price one or whether the plaintiff could succeed on a quantum meruit. If so, the issue was whether a reasonable price would have exceeded the $2,000 already paid before action.
The learned Commissioner reserved his decision in November 1998 after a hearing on two dates separated by some months and gave judgment in January 1999. He found that the agreements were not for any fixed price, but that there was an implied term that the appellant should pay a reasonable price. However, he said that due to the paucity of the evidence, he was unable to make a finding as to what a reasonable price would be. He accepted the reasonableness of the respondent's rate per hour, but was not able to make a finding as to the reasonableness of the number of hours claimed for. Hence he dismissed the action. Not only, however, did he do this, but he purported to dismiss the appellant's counterclaim and, without inviting submissions in respect of any order as to costs, he published his written reasons for judgment which concluded:
"I am not satisfied on the balance of probabilities as to the defendant's counterclaim.
On this basis I cannot make an order in favour of either the plaintiff or the defendant.
Neither have made out their case. The plaintiff's claim and the defendant's counterclaim is dismissed and there will be no order as to costs."
The appellant appeals on the basis first that the learned Commissioner ought, in the circumstances, to have made an order for costs in his favour, he having successfully resisted the respondent's claim, and secondly, that in failing to give him the opportunity to be heard in respect of costs, the learned Commissioner denied the appellant natural justice.
On the face of it, it would seem that the proper exercise of the judicial discretion as to costs would require an order that costs follow the event and that the respondent pay the appellant's costs of the action. The respondent was a wholly unsuccessful plaintiff and the appellant had not been unsuccessful in respect of a counterclaim which he had abandoned well prior to trial. The principle is clear that "where there is an unfettered discretion to order costs, the court will in ordinary circumstances award them to the successful party" (per Underwood J in Farrow v State of Tasmania 62/1997 at 2 and cases there cited). Furthermore, the failure to accord a party the opportunity to seek or oppose any particular order as to costs, including one that no order be made, would, in ordinary circumstances, amount to a denial of natural justice (cf Escobar v Spindaleri (1986) 7 NSWLR 51), although if no information could be advanced which could have made a difference to the Commissioner's order, intervention by an appellate court would be a futility (Stead v State Government Insurance Commission (1986) 161 CLR 141; Ridgeway v Hanlon 65/1994).
It is curious that in this case the appellant's own pleadings acknowledged that "If it was an implied term as alleged [ie, to pay a reasonable price], the Defendant says a reasonable sum for the work and materials of both the first and second agreements was $2,500." In these circumstances, it is difficult to see why the learned Commissioner was not satisfied the reasonable price on a quantum meruit was at least $2,500 and did not give judgment for $500, the appellant having only paid $2,000. However, the respondent has not cross-appealed and I must take the judgment as it stands. I was also informed from the Bar table, without objection, that offers without prejudice as to costs had been made by the appellant prior to the hearing of the matter. In these circumstances, the failure to hear him in respect of costs did amount to a denial of natural justice which this Court should rectify.
I can see no basis upon which the learned Commissioner could properly have exercised his discretion in declining to make any order as to costs. The proper order, in the circumstances, was that the unsuccessful plaintiff/respondent should pay the defendant's/appellant's costs. The appeal is upheld and I order that the respondent pay the appellant's costs of the action to be taxed on the appropriate scale.
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