Dovedeen Pty Ltd v Maund - [2020] QDC 255

DISTRICT COURT OF QUEENSLAND

CITATION:

Dovedeen Pty Ltd v Maund & anor [2020] QDC 255

PARTIES:

DOVEDEEN PTY LTD

(Plaintiff)

v

RONALD EARLE MAUND

(First Defendant)

AND

KAREN-LEE MAUND

(Second Defendant)

FILE NO:

16 of 2017

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Toowoomba District Court

DELIVERED ON:

7 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

Decision on the papers

JUDGE:

Porter QC DCJ

ORDER:

1.   The plaintiff pay the defendants costs of the proceedings including reserve costs fixed at $7500.

2.   The plaintiff pay interest to the defendants in the amount of $42,877.48.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the plaintiff commenced proceedings in the Magistrates Court in 2013 – where the defendants’ counterclaim relied on at trial was filed in 2017 – where the plaintiff’s claim was dismissed – where the defendants’ counterclaim was upheld to the extent of $132,000 – where there has been delay on both sides in advancing the litigation – where costs should follow the event – whether interest pursuant to s. 58 CPA should be awarded.

COUNSEL:
D Edwards (direct-access) for the Plaintiff

Defendants self-represented

SOLICITORS:
D Edwards (direct-access) for the Plaintiff
Defendants self-represented

Summary

For the reasons given in Dovedeen Pty Ltd v Maund [2020] QDC 238 (the Reasons), I dismissed the plaintiff’s claim and upheld the defendant’s counterclaim to the extent of $132,000. As explained in paragraph [214] of the Reasons, I otherwise dismissed the counterclaim. That resulted in the defendant succeeding on $132,000 out of a total counterclaim of $702,690.71: $163,582 of which related to a failed claim for fees for care of foals and $361,435 being a failed claim for compounding contractual interest.
I gave the parties an opportunity to be heard on costs and interest.
For the reasons which follow I order:
(a)The plaintiff to pay the defendants’ costs of the proceedings fixed at $7500; and
(b)The plaintiff pay interest in relation to the judgment sum awarded on the counterclaim of $42,877.48.

Costs order

The defendants succeeded in their defence of the claim and on their counterclaim. The plaintiff accepts that costs should follow the event on the claim but that the defendants should recover only part of their costs on the counterclaim.
The difficulty with that submission is that the parts of the counterclaim which were unsuccessful played virtually no part in the trial. Almost all the evidence at trial was concerned with the defence of the claim and making good the contract under which the counterclaim was advanced. I do not consider there was any meaningful event which could attract a partial costs order in relation to the unsuccessful elements of the counterclaim.
However, it is relevant that the counterclaim could have been brought in the Magistrates Court. That remains so regardless of any award of interest under s. 58 Civil Proceedings Act.[1] It seems to me therefore that r. 697(1) UCPR is applicable and the costs must be assessed as if the proceedings had been started…

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.

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Details

Case: [2020] QDC 255
Decision Date: 7 October 2020

CaseChat Overview and Summary

In the case of Dovedeen Pty Ltd v Maund, the plaintiff, Dovedeen Pty Ltd, commenced proceedings against the defendants, Maund, in the Magistrates Court in 2013. The defendants subsequently filed a counterclaim in 2017. The plaintiff’s claim was dismissed, while the defendants' counterclaim was upheld to the extent of $132,000. The case involved a delay on both sides in advancing the litigation, and the primary issue before the court was whether interest pursuant to section 58 of the Civil Procedure Act should be awarded and, if so, the appropriate rate and period for such interest.

The court determined that costs should follow the event, meaning the unsuccessful party should bear the costs of the litigation. The court awarded interest for 75% of the prejudgment period, which was calculated using the Court Interest Calculator. This resulted in an interest amount of $42,877.48. The court opted not to consider certain submissions from Mr Maund that contained hand-written comments, some of which were factually assertive and others insulting, deeming them inappropriate for inclusion in the judgment.

The court concluded that the defendants were entitled to interest of $42,877.48 and costs fixed at $7500. The plaintiff, Dovedeen Pty Ltd, was ordered to pay these costs and interest to the defendants. The court’s decision was final, with no further appeal anticipated based on the provided text.

Orders

Orders of the court

1. The plaintiff pay the defendants costs of the proceedings including reserve costs fixed at $7500.

2. The plaintiff pay interest to the defendants in the amount of $42,877.48.

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

Ultimately, it seems to me that a just reflection of these considerations is to award the defendants interest for 75% of the prejudgment period. The defendants did not assist the Court by calculating the interest payable under s. 58. Adopting the commencement of proceedings as the start of the pre-judgement interest period for simplicity, the Court Interest Calculator[4] generates interest of $57,169.98. I can see no reason not to apply the rates adopted by that Calculator. They seem reasonable in the circumstances of this case. Adopting the figure of 75%, the amount of interest to be awarded is $42,877.48.[4] >I have caused the submission of both parties to be placed on the file with one exception. Mr Maund sent a copy of Mr Edwards’ submissions with hand written comments, some of which involved assertions of fact and some of which were insulting. I did not take that document into account in this judgment and have placed it in the correspondence section of the file.Conclusion I award the defendants interest of $42,877.48 and costs fixed at $7500. I award the defendants interest of $42,877.48 and costs fixed at $7500.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Dovedeen Pty Ltd v Maund & anor [2020] QDC 255
PARTIES:	DOVEDEEN PTY LTD (Plaintiff) v RONALD EARLE MAUND (First Defendant) AND KAREN-LEE MAUND (Second Defendant)
FILE NO:	16 of 2017
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	Toowoomba District Court
DELIVERED ON:	7 October 2020
DELIVERED AT:	Brisbane
HEARING DATE:	Decision on the papers
JUDGE:	Porter QC DCJ
ORDER:	1. The plaintiff pay the defendants costs of the proceedings including reserve costs fixed at $7500. 2. The plaintiff pay interest to the defendants in the amount of $42,877.48.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the plaintiff commenced proceedings in the Magistrates Court in 2013 – where the defendants’ counterclaim relied on at trial was filed in 2017 – where the plaintiff’s claim was dismissed – where the defendants’ counterclaim was upheld to the extent of $132,000 – where there has been delay on both sides in advancing the litigation – where costs should follow the event – whether interest pursuant to s. 58 CPA should be awarded.
COUNSEL:	D Edwards (direct-access) for the Plaintiff Defendants self-represented
SOLICITORS:	D Edwards (direct-access) for the Plaintiff Defendants self-represented