Faulkner-Mounsey v Baird (No. 2) - [2020] QDC 75

DISTRICT COURT OF QUEENSLAND

CITATION:

Faulkner-Mounsey v Baird & Anor (No. 2) [2020] QDC 75

PARTIES:

DONNA KATHLEEN FAULKNER-MOUNSEY

(plaintiff)

V

ANDREW JOHN BAIRD

(first defendant)

KATRINA BAIRD

(second defendant)

FILE NO/S:

ID48/18

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Ipswich

DELIVERED ON:

6 May 2020

DELIVERED AT:

Ipswich

HEARING DATE:

On the papers

JUDGE:

Judge Horneman-Wren SC DCJ on the papers

ODER:

1.    Order nunc pro tunc pursuant to s 29(2)(a) of the Civil Proceedings Act 2011 that proceeding number M102/17 in the Ipswich Magistrates Court be transferred to the District Court of Queensland at Ipswich from 12 June 2018.

2.     The defendants pay the plaintiff’s costs of and incidental to the proceeding as agreed or assessed on an indemnity basis:

(a)on the Magistrates Court Scale G to 12 June 2018 (excluding any costs the subject of the order of 12 June 2018); and

(b)on the District Court Scale from and including 13 June 2018.

COUNSEL:

J A S Ford (for the plaintiff)

D D Keane (for the defendants)

SOLICITORS:

Craven Lawyers (for the plaintiff)

Twohill Lawyers (for the defendants)

On 6 November 2019 the court gave judgment for the plaintiff on her claim for $28,530.00 for damages and $14,046.00 for interest. The plaintiff was also given judgment on the defendant’s counterclaim. I reserved the question of costs. The parties each filed written submissions, including submissions in reply by the plaintiff.

For the reasons which follow, the defendants should pay the plaintiff’s costs of the proceeding on an indemnity basis.

The course of the proceedings

The plaintiff’s action was commenced by Claim and Statement of Claim filed in the Magistrates Court on 18 April 2017. She claimed $38,681.34 as damages for the repudiation and breach of a lease, interest and costs. On 22 May 2017 the plaintiff was given judgment in default of the defendants filing a notice of intention to defend. The defendants applied to have the default judgment set aside. They were successful and an order setting aside the judgment was made on 5 June 2017. On 19 June 2017 the defendants filed a Defence to the plaintiff’s claim and counterclaimed for damages in the sum of $39,500.00, interest and costs.

The plaintiff filed an Amended Statement of Claim on 4 July 2017. The amount claimed for damages was slightly reduced; from $38,681.34, as originally claimed, to $38,286.71. A Reply and Answer to the Defence and Counterclaim was filed on the same day.

The defendant filed an Amended Defence and Counterclaim on 17 July 2017. The amount of damages counterclaimed remained the same. On 20 July 2017, the plaintiff filed an Amended Reply and Answer and a Further Amended Statement of Claim. Under the latter, the amount for damages as originally claimed was reinstated.

On 13 December 2017, the plaintiff filed a Third Amended Statement of Claim in which the following was pleaded as a new paragraph 7A:

“7A The lease required at Schedule Clause 5(f)(v) that the lessee pay to the lessors [sic] legal costs on a…

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 75
Decision Date: 6 May 2020

CaseChat Overview and Summary

The case of Faulkner-Mounsey v Baird (No. 2) involved a legal dispute between Donna Kathleen Faulkner-Mounsey, the plaintiff, and Andrew John Baird and Katrina Baird, the defendants. The plaintiff sought damages for the repudiation and breach of a lease, interest, and costs. The defendants counterclaimed for damages, interest, and costs. The matter was initially brought before the Ipswich Magistrates Court, but was later transferred to the District Court of Queensland. The primary judgment was given in favour of the plaintiff, and the defendants were ordered to pay the plaintiff’s costs. The court was required to decide on the basis for determining the costs, with the plaintiff arguing for indemnity costs and the defendants arguing for costs on the standard basis.

The court held that the defendants should pay the plaintiff’s costs on an indemnity basis. The court found that the plaintiff’s offer to settle the proceedings was more favourable to the defendants than the judgment obtained. Additionally, the court found that there was no evidence to suggest that the plaintiff was not willing and able to carry out the proposed offer. The court also found that the transfer of the proceedings from the Magistrates Court to the District Court was made without jurisdiction and that an order nunc pro tunc could be made to cure the irregularity.

The court ordered that the defendants pay the plaintiff’s costs of and incidental to the proceeding on an indemnity basis, on the Magistrates Court scale up until 12 June 2018 and on the District Court scale from and including 13 June 2018. The order also excluded any costs that were the subject of the Magistrates Court order of 12 June 2018. The court did not consider it necessary to address the plaintiff’s claim for an award of solicitor and own client costs under the lease, given its findings on indemnity costs under the Uniform Civil Procedure Rules.

Orders