Devpro v. Seamark P/L & Anor

[2007] QSC 31

SUPREME COURT OF QUEENSLAND

CITATION:

Devpro v Seamark P/L & Anor [2007] QSC 31

PARTIES:

DEVPRO (A FIRM)
(plaintiff)
v
SEAMARK PTY LTD ACN 058 624 516
(first defendant)
and
MACPRO PTY LTD ACN 068 964 447
(second defendant)

FILE NO:

S3221 of 2004

DIVISION:

Trial Division

PROCEEDING:

Further Application (Costs)

DELIVERED ON:

23 February 2007

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Wilson J

ORDER:

1.  That the first defendant pay the plaintiff’s costs of and incidental to the proceeding assessed on the standard basis.

2.    No order as to the second defendant’s costs of and incidental to the proceeding.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – the plaintiff made a Calderbank offer early in the litigation to settle for an amount less than the amount awarded by the court at trial – the offer was not made under part 5 of chapter 9 of the Uniform Civil Procedure Rules – the offer was rejected – the plaintiff made a subsequent offer, conditional on the acceptance by the second defendant of a separate offer – this offer was also rejected – whether the plaintiff is entitled to costs on the indemnity basis

Uniform Civil Procedure Rules 1999 (Qld) Part 5 of Chapter 9

Calderbank v Calderbank [1976] Fam 93, cited
Colgate Palmolive Co Pty Ltd v Cussons Pty Ltd (1993) 46 FCR 225, cited
Interchase Corporation Ltd v ACN 010 087 573 Pty Ltd [2000] QSC 13 (23 June 2000), cited
Pirrotta v Citibank Ltd (1998) 72 SASR 259, cited
Westpac Banking Corporation v Commissioner of State Revenue [2004] QSC 19, cited

COUNSEL:

S S W Couper QC for the plaintiff

SOLICITORS:

Forbes Dowling Lawyers for the plaintiff
Lindwall Schweikert Lawyers for the first defendant
McCullough Robertson for the second defendant

1. WILSON J:  Last December I ordered the first defendant to pay the plaintiff $1,106,154.11[1] made up as follows –

   [1]Devpro v Seamark P/L & Anor [2006] QSC 392.

Development fee  $  840,017.50
  Quantum meruit  $    31,995.00
          Less      Amount paid  $    23,367.00
          Plus       Interest  $  257,508.61
  $1,106,154.11

The plaintiff and the first defendant have now delivered written submissions on costs. The second defendant has declined to do so.

1. The plaintiff seeks an order that the first defendant pay its costs on the indemnity basis from the commencement of the proceeding or alternatively from 28 September 2004.

1. The first defendant submits that the plaintiff –

“a.Should not be awarded any of its costs of the proceedings on the indemnity basis against the First Defendant;

b.Alternatively, should not be entitled to those costs incurred at the trial as a result of the issues set out in paragraph 5,[2] whether on a standard or indemnity basis;

c.Alternatively, save for that part of the Plaintiff’s costs referred to in paragraph 1(b), should be awarded its costs of the proceedings on the indemnity basis against the First Defendant only from 23 November…