GPS Power Pty Ltd v Gardiner Willis & Associates P/L

[2001] QSC 116

SUPREME COURT OF QUEENSLAND

CITATION:GPS Power P/L & Ors v Gardiner Willis & Assoc [2001] QSC 116

PARTIES:                 GPS POWER PTY LTD ACN 009 103 422

GPS ENERGY PTY LTD ACN 063 207 456

SUNSHINE STATE POWER BV ARBN 062 295 425

SUNSHINE STATE POWER (NO 2) BV ARBN 063 382

829

SLMA GPS PTY LTD ACN 063 779 028

RYOWA II GPS PTY LIMITED ACN 063 780 058 AND YKK GPS (QUEENSLAND) PTY LIMITED

ACN 062 905 275

(plaintiff)

and

GARDINER WILLIS &

ASSOCIATES PTY LTD ACN 067 249 914

(defendant)

FILE NO:                  5189 of 1996

DIVISION:               Trial Division

DELIVERED ON:    18 April 2001

DELIVERED AT:     Brisbane

HEARING DATE:     12 February 1998

JUDGE:  Mackenzie J

ORDER:1.  The application that the order for costs should be varied or set aside is refused.

CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – POWERS OF COURT – whether order for costs should be varied or set aside - whether r 667 UCPR applies – whether r 668 UCPR applies.

Uniform Civil Procedure Rules r 667(1), r 667(2), r 668

Rockett v The Proprietors "The Sands" BUP 82 [2001] QCA

99 (6 March 2001)

COUNSEL:                S Williams QC with M Liddy for the plaintiff

D Clothier for the defendant

SOLICITORS:          Gadens Lawyers for the plaintiff

Corrs Chambers Westgarth for the defendant

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[1]     MACKENZIE J:   In this matter an order and reasons relating to costs were made and delivered on 21 February 2001.  Written submissions had been made on both sides.    Due  to  what  is  conceded  by  the  defendant  to  be  an  ambiguity  in  the defendant's  response  to  the  plaintiff's  submissions,  the  reasons  for  judgment proceeded  on  the  basis  that  the  other  issues  raised  in  the  defendant's  initial submissions were not being pressed.

[2]     On the day when judgment was delivered the defendant's solicitors telephoned my Associate promptly and early next day faxed to the effect that it had not been intended to convey that the defendant took no issue with the plaintiffs' submission except that the rate of interest remained contentious.

[3]     It is accepted that it was not intended to concede all issues raised by the plaintiff but rate of interest.  However, I should say, so that it is patent, that the respective submissions as to costs had been read and what was taken to be the concession did not strike me as so incongruous against the background of the case as to cause me concern.

[4]     The  underlying  dispute  concerned  interpretation  of  a  construction  works  and blanket liability policy.  The plaintiffs claimed damages for failure of a piece of equipment at a power station.  The plaintiffs were indemnified by an insurer in the sum of $418,716 but the total admitted loss was $459,651.65 leaving a shortfall of

$40,890.65.

[5]     As to the amount paid as indemnity, the argument was whether the terms of the construction works and blanket liability policy precluded recovery of the sum from the defendant.  It was held, and the decision was affirmed by the Court of Appeal, that it could not be recovered.

[6]     In the submissions on costs the defendant submitted that the "event" in this case should be seen as distinct identifiable issues.  It was submitted that the amended defence in draft form containing the point upon which the defendant ultimately succeeded had been provided to the Senior Judge Administrator in support of an application for an adjournment on 2 November 1999.  It was submitted that the only issue from that point on was that which was decided against the plaintiff.  In the circumstances, it was submitted, the defendant should have costs of the proceeding from 2 November 1999 onwards.  It was conceded that the plaintiff should have the costs up to that time on the appropriate Magistrates Court Scale.

[7]     The plaintiffs' position was that liability for the $40,890.65 had not been distinctly conceded  before  trial.    It  was  submitted  that  it  was  necessary  for  it,  in  the circumstances, to prepare on the basis that the whole amount was in dispute.  It was submitted that there had been no formal or informal offer involving admission that the $40,890.65 was recoverable.

[8]     There was no evidence of any such offer before me.  Had there been such an offer the situation would have plainly been somewhat different.  At best, it may have been deducible from the pleadings, prior to the agreement that the matter would be argued on agreed facts, that, because of the focus of the amended defence on the effect of the insurance cover, the liability for $40,890.65 was not likely to be disputed.  When all the factors are balanced, I am not persuaded that it was a case

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where  it  is  appropriate  to  split  or  reduce  costs  in  the  way  submitted  by  the defendant.  As to the basis of assessment, the matter was one which realistically had to be brought in the Supreme Court, in the first instance, because of the quantum. The point concerning the implications of the insurance cover was not taken initially. Although it was finally considered by the Court of Appeal to be a question of construction of the particular contract, it was argued by the parties before me as an important point which was genuinely in dispute on the state of authority.  This was the point around which the decision resolved and was, in my view, appropriate to be argued in this Court.  While that point was resolved in the defendant's favour, the plaintiff succeeded overall, in that it recovered part of the sum sued for, which sum had not made the subject of an offer to settle.

[9] The judgment as to costs was delivered on 21 February 2001. The order was filed the same day. The initial communication from the defendant's solicitors to my chambers was also made that day. Rule 667(1) UCPR permits the court to vary or set aside a order before the earlier of:

(a)         the filing of the order; or

(b)         the end of 7 days after the making of the order.

Since the order was filed on the same day as it was made the window of opportunity to vary or set aside the order was minimal.

[10] In hindsight, if circumstances arise where taking advantage of r 667(1) becomes an issue, the person seeking to take advantage of the rule would be well advised to formally have the matter relisted at the earliest opportunity so that the question of staying the order to allow further consideration may be pursued.

[11] There is also power for the court under r 667(2) UCPR to set aside an order at any time in certain events. None of those is applicable. In particular there is no evidence of consent of the party who has the benefit of the order to reconsideration or variation of the order.

[12] That would leave r 668 UCPR as the only other basis short of appeal. What has been said is said on the assumption that there is jurisdiction because the case falls within one or other of the categories in r 668. However, the use of this expedient in the circumstances should not be taken to be a considered decision that there was power to act under that rule. Indeed, the analysis of it by McPherson JA with whom Williams JA and Wilson J agreed in Rockett v The Proprietors "The Sands" BUP 82 [2001] QCA 99 (6 March 2001) must render it debateable whether the case is within the rule.

[13]     The faxed letter referred to in para [2] above was sent to the plaintiff's solicitors, without response from them.  In the interest of not incurring further costs, I have assumed there is jurisdiction and set out why I would not have made a different order in any event, without requiring submissions in addition to those originally made.  The result is that I decline to set aside or vary the order made.