Harry Davis Properties Pty Ltd v Mahaffey

DISTRICT COURT OF QUEENSLAND

CITATION:

Harry Davis Properties Pty Ltd v Mahaffey [2003] QDC 339

PARTIES:

HARRY DAVIS PROPERTIES PTY LTD ACN 010 018 890

Plaintiff

v

HARLAN WILBUR MAHAFFEY as Trustee under Nomination of Trustees No L241289W and HARLAN WILBUR MAHAFFEY and SHIRLEY MAY BUCHANAN

Defendants

FILE NO/S:

Plaint 21/1997

DIVISION:

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Gympie

DELIVERED ON:

1 October 2003

DELIVERED AT:

Brisbane

HEARING DATE:

(Written submissions)

JUDGE:

McGill DCJ

ORDER:

Vary the judgment of 4 November 2002, by adding an order that the counter-claim be dismissed with costs, and that all costs payable by the first defendant to the plaintiff be assessed on the District Court scale appropriate where the amount recovered is less than $50,000.

CATCHWORDS:

PRACTICE – Costs – amount recovered within jurisdiction of Magistrates Court – whether appropriate to order otherwise.

UCPR r 698

Beardmore v Franklins Management Services Pty Ltd [2002] QCA 60 – considered.

COUNSEL:

A J Taylor for the plaintiff

No submissions were received from the first defendant

SOLICITORS:

Chris Reeve & Co for the plaintiff

1. In this matter on 4 November 2002 I gave judgment on the plaintiff’s claim for $32,239.52 in favour of the plaintiff and published reasons. The defendants’ counter-claim for damages for breach of statutory duty imposed by s 85 of the Property Law Act 1974 was unsuccessful, although it appears that on 4 November 2002 by oversight I omitted formally to dismiss it. On that day I gave the parties leave to put in written submissions as to the scale on which the costs were to be assessed if r 698 was not to apply. I subsequently received submissions from counsel for the plaintiff seeking an order that the costs be assessed on the lower District Court scale. No further submissions were received on behalf of the first defendant.

1. This action was commenced some time ago, on 19 September 1997.  It claimed initially the balance payable under a mortgage in an amount of $45,354.50, an amount which was then within the limits of the jurisdiction of the Magistrates Court following an amendment which came into operation on 1 August 1997.  Prior to that date however it would not have been within that limit, which had been $40,000, and the action was commenced not long after the increase in the limit.  At that stage the land which was the subject of the mortgage security had not been sold.  There had been two unsuccessful attempts to sell the land at auction, the later on 13 September 1997, so when the action was commenced it was reasonable for the plaintiff to have anticipated difficulty in realising the security.  Had the land not been able to be sold the amount claimed would in due course have risen above the Magistrates Court jurisdictional limit of $50,000, because interest was accruing.  In the event the completion of the sale in December 1997 yielded an amount of just over $30,000, and the action proceeded, seeking payment of the balance.  The defendants…