Connor v Bourke (No. 2)

[2013] QDC 78

DISTRICT COURT OF QUEENSLAND

CITATION:

Connor v Bourke (No. 2) [2013] QDC 78

PARTIES:

KAY LORRAINE CONNOR
(Plaintiff)

And

ROBERT THOMAS BOURKE
(Defendant)

FILE NO/S:

3561/09

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

30 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Dorney QC, DCJ

ORDER:

The further judgment of the court is that the defendant pay to the plaintiff the amount of $20,923.61 for interest up to the date of judgment. 1.   

It is ordered that the defendant pay the plaintiff’s costs of the proceeding to be assessed on the standard basis.2.   

CATCHWORDS:

Interest - where statutory and agreement-based interest claimed in the alternative

Costs – whether indemnity costs should be ordered

Civil Proceedings Act 2001 (Qld) s 58

Uniform Civil Procedure Rules 1999 (Qld) r 681, r 684

AKS Investments Pty Ltd & Anor v National Australia Bank & Anor (No.2) [2012] QSC 282

BHP Coal Pty Ltd & Ors v O & K Orenstein and Koppel AG (No. 2) [2009] QSC 64.

Connor v Bourke [2013] QDC 71

Keswick Developments Pty Ltd v Keswick Island Pty Ltd [2009] QSC 59

Oshlack v Richmond River Council (1998) 193 CLR 72

COUNSEL:

C C Wilson for the plaintiff

P N Nolan for the defendant

SOLICITORS:

John Nagel and Co for the plaintiff       

Kerin Lawyers for the defendant

Introduction

1. On 22 April 2013 I gave judgment in Connor v Bourke.[1] In giving judgment it was also directed that both parties file, and serve, written submissions, if any, on interests and costs by 4 pm on 26 April 2013. 

   [1] [2013] QDC 71.

1. The plaintiff has filed her Submissions on interest and costs on 23 April 2013. For his part, the defendant filed his material on 26 April 2013. 

1. Accordingly, I will give my decision on both interest and costs.

Interest

1. I canvassed, in the original decision, in a consideration of interest, the relevant statutory provision [namely, s 58 Civil Proceedings Act 2001 (“CPA”)]. As I noted, by s 58(2)(b) the provision does not apply in relation to a proceeding for the payment of money for which interest is payable “as of right...because of an agreement”. 

1. As I further remarked, since the plaintiff had then not “seemingly” elected to rely upon the provisions of the Bill of Sale in her original Submissions, I considered that s 58 did have application.

1. Nevertheless, in her latest Submissions, she does seek, admittedly in the alternative, interest pursuant to an agreement, specifically identifying the Bill of Sale (Exhibit 4).

1. Accordingly, it is to that agreement - by which interest is payable “as of right” - that I must turn. That approach is consonant with the defendant’s position.

1. As I also canvassed in the original decision, the defendant’s defaults in payment are those which have been, now, set out in paragraph 9 of the plaintiff’s latest Submissions. 

1. Hence, I accept that the interest running from those respective dates to the date of judgment, appropriately capitalised under Clause 3 of the Bill of Sale and “calculated and adjusted” on monthly balances, is the amount of $20,923.61 (as has been calculated in paragraph 12 of those Submissions).

1. Accordingly, I intend to give judgment for interest in that sum.

Costs

1. I accept that r 681 of the Uniform Civil Procedure Rules 1999 (“UCPR”) indicates that, while the relevant discretion is exercisable by the court, costs follow the event, “unless the court orders otherwise”. For reasons that I will next canvass, r 684 of the UCPR has no application here: see BHP Coal Pty Ltd v O & K Orenstein and Koppel AG (No. 2).[2] Fundamentally, the trial took 2 days in oral evidence, both parties electing for oral submissions. It would have gone into a second day even if both the abandoned excess and the rejected sums concerning the alleged “loan advances” had not been in issue. Of course, from the amended paragraph 3(c) of the Fifth Amended Statement of Claim, not only was the $5,000.00 recovered but also, if indirectly, the $7,000.00 and the $4,000.00 paid on 4 March 2009 and 17 March 2009, respectively. In any event, there was no separate definable question, or particular part, that those unsuccessfully claimed advances constituted – they were merely part of the numerous sums claimed as loans. The “detinue question” concerned the recovery of the 4 items of jewellery, or their (possible) value. The relevant amendment was to reduce the original amended claim for it from $22,650.00 to $6,050.00. While that was not fully explored at trial, no significant delay or cost consequence has been identified. As for conversion, I have dealt with that in my reasons. It added nothing to the issues, questions or parts by way of the important element of time. Delay in this case is not a material factor in the question of costs, whatever part it might otherwise have played in the question of interest.

   [2] [2009] QSC 64, at [6]-[8].

1. It is abundantly clear that costs are not awarded to punish an unsuccessful party [see Oshlack v Richmond River Council[3]]. It is also only in relatively limited exceptions that costs (which are directed to the primary purpose of indemnifying the successful party) should be other than on the standard basis.

   [3] (1998) 193 CLR 72, at 97.

1. The plaintiff has drawn to the Court’s attention the decision in Keswick Developments Pty Ltd v Keswick Island Pty Ltd.[4] The circumstances of that case are so different from these that nothing (save the relevant authorities establishing the principles) has any moment here.

   [4] [2009] QSC 59.

1. Those relevant principles concerning indemnity costs were also canvassed by Applegarth J in AKS Investments Pty Ltd & Anor v National Australia Bank & Anor (No.2).[5] 

   [5] [2012] QSC 282

1. By reference to both authorities, the following relevant factors can be extracted:

•    whether there was “much more” than persistence in a weak case;

•    whether there was something about the facts and circumstances “beyond the demerit of a party’s case, as reflected in the outcome”;

•    whether the proceeding was commenced or continued in “wilful disregard of known facts”;

•    whether groundless allegations were made;

•    whether there was misconduct in the conduct of proceeding that caused loss of time to the court and to other parties; and

•    whether proceedings were continued “for some ulterior motive”, or in wilful disregard of “clearly established law”.

1. Quite obviously, those factors are not necessarily exhaustive. But they do cover the kinds of factors that might be considered in a case such as this. 

1. Despite the breadth of those stated factors, the only factor relied upon by the plaintiff in her relevant Submissions is the contention that the Court’s findings support the inference “that the defendant was acting for some ulterior motive in taking the action to trial”.

1. It is difficult to detect what the basis of reliance on that particular factor, in this case, is. The court has found that it prefers the evidence given by the plaintiff, particularly concerning whether certain sums had been repaid by the defendant to the plaintiff; but there was a contest both as whether all such sums claimed were “loan monies” and, of such loan monies, what the total was. This is obvious from even a quick survey of the reasons for the judgment. There were some amounts claimed which were not allowed, even additional to those which were not continued to be sought by the plaintiff after all the evidence had been led and tested. If for no other reason, there were justifiable reasons for the defendant to contest matters such as those just discussed. But, in any event, a person is entitled to run a trial where issues of veracity, and reliability, are put in issue, particularly where there were significant “unknown” facts.

1. Hence, I am not satisfied that any of the relevant factors warrant, either separately or in combination, the exercise of discretion to award costs on the indemnity basis.

Judgment and orders

1. For the reasons stated above: I intend to give judgment in the sum of $20,923.61 for interest up to the date of judgment: and I intend to order that the defendant pay the plaintiff’s costs to be assessed on the standard basis.