John Thomas Wright v Liongain Pty Ltd

[2003] QSC 425

SUPREME COURT OF QUEENSLAND

File No 11396 of 1997

BETWEEN:

JOHN THOMAS WRIGHT

Plaintiff

AND:

LIONGAIN PTY LTD

First Defendant

MOYNIHAN J – REASONS FOR JUDGMENT

CITATION:

John Thomas Wright v Liongain Pty Ltd [2003] QSC 425

PARTIES:

John Thomas Wright

(Plaintiff)

v

Liongain Pty Ltd

(Defendant)

FILE NO/S:

SC11396 of 1997

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

Thursday 11 December, 2003

DELIVERED AT:

Brisbane

HEARING DATE:

17.03.03 – 20.03.03

JUDGE:

Moynihan SJA

ORDER:

The action is dismissed;1.   

Costs of and incidental to the action including any reserved costs, be assessed on a standard basis or agreed;2.   

The costs so assessed be paid by the plaintiff as to3.    two-thirds and the defendant as to one-third;

4.   I give leave to the defendant to further amend the defence in terms of the document marked “A” dated 4 December 2003 and placed with the papers.

CATCHWORDS:

PROCEDURE - COSTS - COSTS OF ISSUES - Where the plaintiff failed to establish liability – Where the defendant failed to make out the defence – Where the defendant chose to litigate the defence of conspiracy and failed – Where the costs attributable to the defence of conspiracy are to be apportioned.

COUNSEL:

Mr TC Martin QC and Mr SJ Given for the Plaintiff

Mr T O’Sullivan and Mr PL Feely for the Defendant

SOLICITORS:

Morton and Morton for the Plaintiff

Hopgood Ganim for the Defendant

1. On 7 November 2003 I published my reasons in respect of this matter and invited further submissions dealing with amendment of the defence, damages and costs.  Those submissions are now to hand and the matter can be finalised.

1. I give leave to the defendant to further amend the defence in terms of the document marked “A” dated 4 December 2003 and placed with the papers.

1. So far as damages are concerned, given the view I take of the plaintiff’s credibility in the reasons published on 7 November 2003, I am unable to calculate the plaintiff’s damages with any degree of precision.

1. The plaintiff has failed to prove damages beyond the immediate short term consequences of the robbery.  I am not able to find, with any degree of confidence, these were other than short term or find the effect on the plaintiff’s earning capacity.  Doing the best I can I would assess the damages at $10,000.

1. I turn to the question of costs.  The plaintiff failed to establish liability.  On the other hand, the defendant failed to make out what, in the reasons published on 7 November 2003, was described as the conspiracy defence.  Litigation of that issue occupied a significant proportion of the trial time.

10.

11.The defendant was entitled to litigate the defence.  I do not accept the submission to the effect that it ought not to have done so because it was in possession of “all relevant material” which disclosed that no reasonable tribunal of fact could be satisfied to the required standard.

12.

13.That said the defendant chose to litigate the defence and failed.  In the circumstances, the appropriate course is to apportion, a fairly arbitrary exercise, the costs attributable to that.

14.

15.The considerations being those I have canvassed I order as follows:-

i.The action is dismissed;

ii.Costs of and incidental to the action including any reserved costs, be assessed on a standard basis or agreed;

iii.The costs so assessed be paid by the plaintiff as to two-thirds and the defendant as to one-third.