French v NPM Group Pty Ltd

[2008] QSC 72

SUPREME COURT OF QUEENSLAND

CITATION:

French & Anor v NPM Group Pty Ltd [2008] QSC 72

PARTIES:

ROBERT FRENCH and LYNETTE FRENCH
Plaintiffs
v
NPM GROUP PTY LTD
Defendant

FILE NO/S:

BS 9795/06

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

18 April 2008

DELIVERED AT:

Brisbane

HEARING DATE:

N/A

JUDGE:

McMurdo J

ORDER:

Plaintiffs to pay the defendant’s costs of the proceedings, assessed on the standard basis.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE – COSTS OF WHOLE ACTION – GENERALLY – Where plaintiff succeeded on some issues but not others

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – No justification for departure from the general rule in this case

r 689(1), Uniform Civil Procedure Rules 1999 (Qld)

Cretazzo v Lombardi (1975) 13 SASR 4, applied

Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166; 76 LGRA 381, applied

COUNSEL:

Mr M D Martin for the plaintiff

Mr P H Morrison QC with Ms M J Luchich for the defendant

SOLICITORS:

DeVere Lawyers for the plaintiff

Gadens Lawyers for the defendant

1. McMURDO J:  On 14 March 2008 I gave judgment for the defendant.  The parties then asked for time to provide written submissions as to costs, which is the issue the subject of this judgment. 

1. The defendant seeks its costs (on the standard basis).  The plaintiffs submit that they should pay only the defendant's costs on the question of merger upon which the defendant succeeded.  They say that they ought not to pay the costs of issues on which they were successful or which were in any case unnecessary for the determination of their claim. 

1. The starting point is that the successful defendant is entitled to its costs unless another order is more appropriate: r 689(1) Uniform Civil Procedure Rules 1999 (Qld). The plaintiffs say that this is an exceptional case however, at least for these reasons. All of the oral evidence related to the issue of whether they were reasonably dissatisfied with the house, upon which they were substantially successful. I found that there were defects such as cracking and that until the trial itself, there was not the required engineer's certificate. This occupied several days of the trial and no doubt much of the preparation. They say that the defendant raised other arguments which were unnecessary, such as that there was a deemed acceptance of the works by the making of a final payment. I found it unnecessary to answer that question but it involved purely a question of law and should not have contributed much to the costs.

1. As to the factual questions involving defects, it is true, as the defendant submits, that these were ultimately irrelevant issues because of the merger question.  But a defendant is entitled, at least to an extent, to advance several defences without being exposed to an adverse ruling on costs should it succeed on one but not all of them: Cretazzo v Lombardi[1] and Australian Conservation Foundation v Forestry Commission[2].  The defendant's case as to the defects had some evidentiary basis although I rejected that evidence. 

   [1](1975) 13 SASR 4, 12.

   [2](1988) 81 ALR 166, 169.

1. Ultimately this is a case where a defendant has succeeded on one point but failed on some other grounds of defence and where there were yet further grounds which it was unnecessary to determine.  In all the circumstances I am not persuaded that the normal rule should be departed from, and it will be ordered that the plaintiffs pay the defendant's costs of the proceedings to be assessed on the standard basis.