DISTRICT COURT OF QUEENSLAND
CITATION:
Hoppen v Stoneridge Constructions Pty Ltd (No. 2) [2024] QDC 24
PARTIES:
TIMOTHY JOEL HOPPEN
and
ELISE GABRIELLE HOPPEN
(plaintiff)
v
STONERIDGE CONSTRUCTIONS PTY LTD
ACN 609 318 621
(defendant)
FILE NO:
BD 2885 of 2022
DIVISION:
Civil
PROCEEDING:
Costs application
ORIGINATING COURT:
Maroochydore Magistrates Court
DELIVERED ON:
22 March 2024.
DELIVERED AT:
Brisbane
HEARING DATE:
Written submissions received 2 February 2024, 8 February 2024 and 13 February 2024.
JUDGE:
Byrne KC DCJ
ORDER:
1. The plaintiff is to pay the defendant’s costs on the standard basis and on the scale applicable to the Magistrates Court to and including 31 October 2022.
2. The plaintiff is to pay the defendant’s costs on the standard basis and on the scale applicable to the District Court from 1 November 2022 to and including 24 May 2023.
3. The plaintiff is to pay the defendant’s costs on the indemnity basis on and from 25 May 2023.
CATCHWORDS:
JUDGMENT – COSTS – where the plaintiff commenced proceedings seeking damages for breach of contract and the refund of monies paid under a deposit – where the defendant was wholly successful at trial - where the defendant seeks indemnity costs – where the plaintiff concedes costs should be awarded but on a standard basis only - whether departure from the usual order of costs on the standard basis is justified - whether departure from the usual rule that costs up to the date of transfer be ordered on the Magistrates Court scale is justified
LEGISLATION:
Uniform Civil Procedure Rules 1999 (Qld) rr 361, 688, 1003.
CASES:
Bulsey v State of Queensland [2016] QCA 158.
Calderbank v Calderbank [1975] All ER 333.
Fick v Groves (No. 2) [2010] QSC 182.
Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No. 2) (2005) 13 VR 435.
Hoppen v Stoneridge Constructions Pty Ltd [2024] QDC 2.
S.H.A. Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd (No. 2) [2020] QSC 323.
Stewart v ATCO Controls Pty Ltd (in liq) (No. 2) (2014) 252 CLR 331.
Thiess Pty Ltd v FLSMIDTH Minerals Pty Ltd (No. 2) [2010] QSC 120.
Todrell Pty Ltd v Finch (No. 2) [2007] QSC 386.COUNSEL: Mr. W. Redpath (sol) for the plaintiff.
Mr. N.M. Cooke for the defendant.
SOLICITORS: Hawkes Lawyers for the plaintiff.
Wheldon & Associates for the defendant.
Introduction
The plaintiff commenced proceedings against the defendant seeking damages for breach of contract and the refund of some monies paid under a deposit. The defendant was wholly successful on the trial and the claim was dismissed.[1] The issue of costs now falls for consideration.
[1]Hoppen v Stoneridge Constructions Pty Ltd [2024] QDC 2 (“the reasons”).
The proceedings were commenced in the Magistrates Court on 13 July 2021. At that time only one of four asserted heads of damages was particularised in terms of quantum, in an amount of $29,640. The other claimed heads of damage were variously described as “to…
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- Case
- [2024] QDC 24
- Decision Date
CaseChat Overview and Summary
The court found that there must be something beyond a lack of merit in a party's case before departure from the usual order of costs on the standard basis is justified. Some of the plaintiff's pleadings could not be sustained in light of the terms of the contract itself. Further, the pleadings as to the quantum of damages sought were defective, and there was a lack of proof of parts of them. However, the defects in the pleadings concerning the contractual obligations appeared to be the result of sloppiness in drafting rather than deliberate or reckless misstatements of material facts. The plaintiff's approach to proof of quantum as at the commencement of the proceedings was poor, as three of the four heads of damages claimed were not quantified. However, the defendant neither complained about the failure to particularise the quantum in its Defence, nor did it take any other action such as applying to strike out that part of the Statement of Claim or asserting a right to indemnity costs if the pleading was not rectified. The plaintiff commenced proceedings in the Magistrates Court, thereby avoiding the risk of exposing the defendant to unnecessary costs of the higher jurisdiction.
The court found that the plaintiff is to pay the defendant's costs on the standard basis and on the scale applicable to the Magistrates Court to and including 31 October 2022. The plaintiff is to pay the defendant’s costs on the standard basis and on the scale applicable to the District Court from 1 November 2022 to and including 24 May 2023. The plaintiff is to pay the defendant’s costs on the indemnity basis on and from 25 May 2023.
Orders
Orders of the court
1. The plaintiff is to pay the defendant’s costs on the standard basis and on the scale applicable to the Magistrates Court to and including 31 October 2022.
2. The plaintiff is to pay the defendant’s costs on the standard basis and on the scale applicable to the District Court from 1 November 2022 to and including 24 May 2023.
3. The plaintiff is to pay the defendant’s costs on the indemnity basis on and from 25 May 2023.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The plaintiff accepts that the defendant is entitled to its costs, but argues they should be paid on the standard basis only. They argue that as there was always a triable issue, it was not an ill-conceived action and that the respective refunds were not unreasonably sought given the circumstances under which they were made. Consideration The defendant’s primary contention is that it was irresponsible of the plaintiff to have commenced and pursued proceedings in the circumstances, thereby exposing the defendant to unnecessary costs.[3] Regardless of the nomenclature used, there must be something about the facts and circumstances beyond a lack of merit of a party’s case before departure from the usual order of costs on the standard basis is justified.[4] [3]Todrell Pty Ltd v Finch (No. 2) [2007] QSC 386.[4]Thiess Pty Ltd v FLSMIDTH Minerals Pty Ltd (No. 2) [2010] QSC 120, [4]. As the defendant submits, some of the plaintiff’s pleadings could not be sustained in light of the terms of the contract itself. Further, the pleadings as to the quantum of damages sought were, as outlined in the reasons, defective and there was ultimately a lack of proof of parts of them. Nonetheless, I am not satisfied any of the defects relied on by the defendant rises to a level to justify indemnity costs from the commencement of the proceedings. The defects in the pleadings concerning the contractual obligations appear to be the result of sloppiness in drafting rather than deliberate or reckless misstatements of material facts.[5] The pleading that the defendant was obliged to apply for a development application for the construction of the house did touch on the essence of its case but was easily dealt with in the defence such that it did not actually affect the real issue in the trial; the reasonableness of the timing of the defendant’s lodgement of material for the building approval. That and the other pleading defects going to liability, were readily dealt with in the Defence.[5]cfFick v Groves (No. 2) [2010] QSC 182. The defendant also specifically points to the plaintiff’s approach to the issue of quantum when the proceedings were commenced to justify an order for indemnity costs. It can be accepted that the plaintiff’s approach to proof of quantum as at the commencement of the proceedings was, at least, poor. Three of the four heads of damages claimed were not quantified. The largest component of the overall quantum claimed was always going to be based on the asserted additional cost of building materials and, if the date of the tendered expert reports can be relied upon for the purpose, the plaintiff did not know what quantum would be calculated by the expert when the proceedings were commenced. This practice is not to be encouraged and supports the defendant’s submissions, at least in circumstances where there was no time limitation approaching. However, it is also relevant that the defendant neither complained about the failure to particularise the quantum in its Defence, nor did it take any other action such as applying to strike out that part of the Statement of Claim or asserting a right to indemnity costs if the pleading was not rectified. Secondly, the plaintiff commenced proceedings in the Magistrates Court, thereby avoiding the risk of exposing the defendant to unnecessary costs of the higher jurisdiction. Thirdly, there is nothing to suggest the plaintiff did not reasonably expect that the pleaded heads of damage would be quantified, in time.