Dubois v. Down

[2007] QSC 196

[2007] QSC 196

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MCMURDO J

No S2176 of 2003

PHILIP JAMES DUBOIS	Plaintiff
and
ROGER HUGH LANDON DOWN	Defendant

BRISBANE

..DATE 21/06/2007

JUDGMENT

HIS HONOUR:  This is the hearing on an assessment of damages.

The plaintiff has obtained a judgment for damages to be

assessed.  The plaintiff is the landlord of a premises who

granted a lease which was guaranteed by the defendant. 

When the matter was called today there was no appearance by or

for the defendant.  The defendant is without legal

representation.  His former solicitors have previously been

given leave to withdraw, and in consequence his address for

service became an address where he resides, or apparently

resides, at Airlie Beach.  Since then all relevant

correspondence on behalf of the plaintiff has been sent to him

there.

By rule 509 sub rule 3 it is provided that when the hearing

date for an assessment of damages is fixed the plaintiff must

serve notice of the hearing date on the defendant.  Because of

the particular circumstances here, as I will describe, and the

non-appearance by the defendant, it is necessary to say

something about the operation of that rule in the present

case.

These proceedings are related to those which are numbered

5191 of 2003.  Chesterman J ordered on 27 August 2003 not

only that the plaintiff have judgment for damages to be

assessed in the present proceedings, but that the assessment

be heard together with proceeding 5191 of 2003.  That

proceeding was set down for trial on two days; being today and

tomorrow.  As a result of an agreement between the parties to

those proceedings the date for hearing was fixed by the

Registrar with the approval of the parties to those other

proceedings.  It seems to me that the effect of the

Registrar's doing that was to fix the hearing date for the

present assessment because of the order for contemporaneous

hearings which had been made by Chesterman J.  It is

demonstrated by an affidavit by the plaintiff's solicitor that

the defendant was informed of that; that is, that the other

matter, at least, had been given this as the date for hearing

and that therefore his matter would be heard today also.

However, what then happened was that the present proceedings

were placed on the call-over list and it was at the call-over

held on 20 April 2007 that the assessment hearing was,

perhaps again, given a hearing date; that is, today's date. 

Since then, that is since the call-over, several letters have

been written by the plaintiff's solicitor to the defendant

referring to the trial of this case.  Importantly shortly

before that call-over the plaintiff's solicitor wrote to the

defendant informing him that the plaintiff's intention was to

have the hearing dates for this assessment confirmed at the

call-over as today and tomorrow.  In all these circumstances I

am satisfied that the hearing date has been duly fixed and

that the plaintiff has served notice of the hearing date on

the defendant.

Turning then to the assessment, the various components of the

claim are established in each case by the evidence.  In

essence, the plaintiff's claim is that the lessee repudiated

the lease entitling the plaintiff to damages represented by

the rent which would have been received and the outgoings

contribution which would have been received over the balance

of the term of the lease, less what the plaintiff has received

from the use of the premises after the lessee vacated them. 

The amount of the rent that would have been payable under the

lease for the balance of the term is proved to be the sum of

$357,682.47.  The outgoings contribution is also proved.  The

variable outgoings as defined by the lease are proved in the

sum of $498,451.86.  The lessee's agreed proportion, as that

term is defined by the lease, is according to the proportion

of the area of the demised premises to the net lettable area

of the building.  Those respective areas are, in turn, proved

by the evidence with the result that the agreed proportion of

variable outgoings is proved in the sum of $71,936.24.

There is also a claim which is made out for $899.30 for the

cost of reinstating the premises.  From those amounts there

should be certain deductions.  There should be credit given

for the sum of $44,362.79 received from the new tenant and

credit for a sum of $3,000 in relation to purchase of some

plant and equipment which the plaintiff had bought from the

defendant.  The defendant should also be credited with the sum

of $14,296.50 which was the subject of an earlier judgment,

and which has been paid by the defendant to the plaintiff. 

The result then is a figure of $368,858.72 and that amount

ultimately is owed by the defendant according to the terms of

his guarantee.

The plaintiff then seeks interest at the rate of 9 per cent,

in effect, on half that amount from 9 December 2002 to 31 May

2006, and on the whole of that amount from 1 June 2006 until

today's date.  It is appropriate that that interest be

awarded.  It totals $92,770.49.

The remaining issue is that of costs.  The lease entitles the

plaintiff to indemnity costs, but the plaintiff seeks them

only from 11 May 2007 because it was only from that date the

plaintiff concedes that there was a valid client agreement

pursuant to section 49 of the Queensland Law Society Act 1952.

Until that date the plaintiff's costs would be assessed on the

standard basis.  For these reasons there will be judgment for

the plaintiff against the defendant in the amount of

$461,629.21 which is inclusive of interest, and it will be

ordered that the defendant pay the plaintiff's costs of and

incidental to this proceeding to be assessed on the standard

basis until 11 May 2007 and on the indemnity basis thereafter.

I will initial the draft judgment, which is to that effect and

place that with the papers.

-----