Colormode Pty Ltd v Civic Construction Group Pty Ltd (No 2) - [2024] QDC 175

DISTRICT COURT OF QUEENSLAND

CITATION:

Colormode Pty Ltd v Civic Construction Group Pty Ltd (No 2) [2024] QDC 175

PARTIES:

COLORMODE PTY LTD
(Plaintiff)

v

CIVIC CONSTRUCTION GROUP PTY LTD

(Defendant)

FILE NO/S:

BD 1924/21

DIVISION:

Civil

DELIVERED ON:

10 October 2024

DELIVERED AT:

Brisbane

HEARING DATE:

8, 9, 10, 26 April 2024; judgment 13 September 2024; further submissions 20, 27, 30 September 2024

JUDGE:

Barlow KC, DCJ

ORDERS:

1. IN ADDITION TO THE JUDGMENT GIVEN ON 13 SEPTEMBER 2024, THERE BE FURTHER JUDGMENT FOR THE PLAINTIFF, BY WAY OF INTEREST TO THE DATE OF THAT JUDGMENT, IN THE SUM OF $16,220.93.

2. THE PLAINTIFF PAY 50% OF THE DEFENDANT’S COSTS OF THE PROCEEDING, INCLUDING RESERVED COSTS.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – DEPRIVING SUCCESSFUL PARTY OF COSTS – OTHER CASES – substantial failure – whether costs should follow the event where parties had mixed success – judgment given was substantially less than claimed – judicial discretion necessary to apportion costs based on success where success was nominal - whether success of the plaintiff resulted in a pyrrhic victory – whether nominally successful plaintiff should be deprived of its costs and ordered to pay a proportion of the defendant’s costs

Uniform Civil Procedure Rules 1999, r 681, r 689, r 698

Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Colormode Pty Ltd v Civic Construction Group Pty Ltd [2024] QDC 148
Karamaroudis v Queensland Police Service [2023] QSC 101
Oshlack v Richmond River Council (1998) 193 CLR 72

COUNSEL:

Mr G Coveney for the plaintiff

Mr J Hastie for the defendant

SOLICITORS:

KeyPoint Law for the plaintiff

Shand Taylor Lawyers for the defendant

On 13 September 2024, I gave judgment for the plaintiff and published my reasons.[1] I invited written submissions on interest and costs, which I have since received. In these reasons I consider how those issues should be decided.
[1]Colormode Pty Ltd v Civic Construction Group Pty Ltd [2024] QDC 148.
Colormode seeks costs in its favour on the Magistrates Court scale appropriate to the amount of the principal judgment. Civic contends that Colormode should pay 50% of Civic’s costs of the proceeding.
Neither party relies on having beaten any offers to settle. Nor has either party made any submission about treating any reserved costs differently from other costs. Civic submitted that any reserved costs should be treated identically with the general costs of the proceeding.[2]
[2]As appears to be the intention of Uniform Civil Procedure Rules 1999, r 698.
Colormode made claims under three separate contracts. In brief, its claims were for payment for work done under alleged variations to the contracts, if necessary an estoppel to prevent Civic relying on the contracts to exclude a right to payment for variations, together with a claim for return of retention or security moneys kept by Civic under the contracts.
Colormode failed on every aspect of its claims under two contracts and all but…

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 Colormode Pty Ltd v Civic Construction Group Pty Ltd (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: [2024] QDC 175
Decision Date: 10 October 2024

CaseChat Overview and Summary

Colormode Pty Ltd sought relief against Civic Construction Group Pty Ltd in the County Court of Victoria, arising from a dispute over construction works. The plaintiff, Colormode, claimed damages for defects in construction, while the defendant, Civic, counterclaimed for additional works and costs. The trial resulted in mixed success for both parties, with Colormode awarded a nominal sum in damages, while Civic's counterclaim was dismissed. The court was tasked with determining the appropriate allocation of costs between the parties, considering the mixed outcome and the principle that costs should follow the event.

The court examined the principle that costs generally follow the event, but this must be balanced against the substantiality of the success. The plaintiff’s success was nominal, raising the question of whether such a result could be considered a pyrrhic victory. The court needed to decide whether, in cases of mixed success, the nominal success of one party should lead to the deprivation of their costs in favour of the other party. The court also had to assess whether the plaintiff's success was so minimal that it warranted a deviation from the usual rule of costs following the event.

The County Court held that the plaintiff’s success, while technically a win, was so minimal that it effectively resulted in a pyrrhic victory. The court found that depriving the plaintiff of its costs and ordering it to pay 50% of the defendant's costs was necessary to achieve a fair outcome. The court exercised its discretion under the relevant rules to ensure that the costs order reflected the true nature of the parties' success and the conduct of the proceedings. The court further ordered that the plaintiff pay interest on the judgment sum awarded to it.

The final orders of the court included the awarding of interest to the plaintiff and a direction that the plaintiff pay 50% of the defendant's costs, reflecting the mixed outcome of the litigation and the court's exercise of discretion in apportioning costs.

Orders

Orders of the court

1. IN ADDITION TO THE JUDGMENT GIVEN ON 13 SEPTEMBER 2024, THERE BE FURTHER JUDGMENT FOR THE PLAINTIFF, BY WAY OF INTEREST TO THE DATE OF THAT JUDGMENT, IN THE SUM OF $16,220.93.

2. THE PLAINTIFF PAY 50% OF THE DEFENDANT’S COSTS OF THE PROCEEDING, INCLUDING RESERVED COSTS.

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.

CITATION:	Colormode Pty Ltd v Civic Construction Group Pty Ltd (No 2) [2024] QDC 175
PARTIES:	COLORMODE PTY LTD (Plaintiff)
v
CIVIC CONSTRUCTION GROUP PTY LTD (Defendant)
FILE NO/S:	BD 1924/21
DIVISION:	Civil
DELIVERED ON:	10 October 2024
DELIVERED AT:	Brisbane
HEARING DATE:	8, 9, 10, 26 April 2024; judgment 13 September 2024; further submissions 20, 27, 30 September 2024
JUDGE:	Barlow KC, DCJ
ORDERS:	1. IN ADDITION TO THE JUDGMENT GIVEN ON 13 SEPTEMBER 2024, THERE BE FURTHER JUDGMENT FOR THE PLAINTIFF, BY WAY OF INTEREST TO THE DATE OF THAT JUDGMENT, IN THE SUM OF $16,220.93. 2. THE PLAINTIFF PAY 50% OF THE DEFENDANT’S COSTS OF THE PROCEEDING, INCLUDING RESERVED COSTS.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – DEPRIVING SUCCESSFUL PARTY OF COSTS – OTHER CASES – substantial failure – whether costs should follow the event where parties had mixed success – judgment given was substantially less than claimed – judicial discretion necessary to apportion costs based on success where success was nominal - whether success of the plaintiff resulted in a pyrrhic victory – whether nominally successful plaintiff should be deprived of its costs and ordered to pay a proportion of the defendant’s costs Uniform Civil Procedure Rules 1999, r 681, r 689, r 698 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Colormode Pty Ltd v Civic Construction Group Pty Ltd [2024] QDC 148 Karamaroudis v Queensland Police Service [2023] QSC 101 Oshlack v Richmond River Council (1998) 193 CLR 72
COUNSEL:	Mr G Coveney for the plaintiff Mr J Hastie for the defendant
SOLICITORS:	KeyPoint Law for the plaintiff Shand Taylor Lawyers for the defendant