Keeley & Ors v Horton & Anor (No 2) - [2014] QDC 260

DISTRICT COURT OF QUEENSLAND

CITATION:

Keeley & Ors v Horton & Anor (No 2) [2014] QDC 260

PARTIES:

WILLIAM KEELEY AND LEANNE FAYE KEELEY

(first plaintiffs)

and

MARINE WAREHOUSE PTY LTD
(ACN 066 954 122)

(second plaintiff)

v

ROBERT WILLIAM HORTON AND DESLEY MARGARET HORTON

(defendants)

FILE NO/S:

3231/07

DIVISION:

Trial

PROCEEDING:

Claim

ORIGINATING COURT:

District Court

DELIVERED ON:

24 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Dorney QC, DCJ

JUDGMENT AND ORDERS:

A. The judgment of the Court is that:

1. the Defendants pay to the First Plaintiffs the amount of $100.00; and

2. the Defendants pay to the Second Plaintiff the amount of $446.16 (including $174.68 interest to 15 October 2014).

B. The Court orders that:

1. the Defendants pay 10% of the Plaintiffs’ costs of the proceeding assessed on the Magistrates Court Scale “Under $751”; and

2. the Plaintiffs pay 90% of the Defendants’ costs of the proceeding.

CATCHWORDS:

Damages - nominal damages - effect on costs orders - overall effect where “small” damages awarded for discrete breach

LEGISLATION CITED:

Uniform Civil Procedure Rules 1999, r 150(1)(h), r 159, r 681, r 684(2), r 697(2), r 698

Civil Proceedings Act 2011, s 58

CASES CITED:

Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873

Gold & Copper Resources Pty Ltd v Newcrest Operations Ltd [2013] NSWSC 345

Horton & Anor v Keeley & Ors [2013] QCA 161

Hyde Park Residence Ltd v Yelland [1999] RPC 655

Keeley & Ors v Horton & Anor [2014] QDC 234

King v Benecke [2014] NSWSC 957

Malabar RSL Sub-Branch Club Pty Ltd v RSL Custodians Pty Ltd [2014] NSWSC 1278

McDermott & Ors v Robinson Helicopter Company (No 2) [2014] QSC 213

McDowall v Reynolds [2004] QCA 245

Mio Art Pty Ltd v Macequest Pty Ltd & Ors (No 2) [2013] QSC 271

Motium Pty Ltd v Arrow Electronics Australia Pty Ltd [2011] WASCA 65

Murdoch v Lake [2014] QCA 269

NCON Australia Ltd v Spotlight Pty Ltd (No 7) [2014] VSC 25

Oshlack v Richmond River Council (1998) 193 CLR 72

State of New South Wales v Stevens (2012) 82 NSWLR 106

COUNSEL:

Mr S Given for the plaintiffs

Mr K Kelso for the defendants

SOLICITORS:

Files Stibbe for the plaintiffs

Colville Johnstone for the defendants

Introduction

On 15 October 2014 I made orders in this proceeding. I granted to all parties leave to file, and serve, further submissions, in accordance with the findings made in my conclusions reached, though limited to the assessment of nominal damages, interest and costs, by a stated date.

Both sets of parties have filed and served relevant submissions.

Objection to further material

The defendants, along with these submissions, filed an affidavit which exhibited correspondence from the plaintiffs’ solicitors to the defendants’ solicitors dated 23 February 2006. The plaintiffs have objected to the affidavit and exhibit on the basis that privilege attaches to the communication in question, asserting that it was a “genuine negotiation with intent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] QDC 260
Decision Date: 24 November 2014

CaseChat Overview and Summary

The case of Keeley & Ors v Horton & Anor (No 2) involved the applicants, Keeley and others, seeking nominal damages against the respondents, Horton and another, following a breach of contract. The dispute came before the Federal Court of Australia. The applicants argued for nominal damages in recognition of the breach and sought an order for costs, which would typically follow a successful claim for damages.

The central legal issue before the court was the appropriate effect of awarding nominal damages on the subsequent costs order. The applicants contended that the award of nominal damages should not automatically disqualify them from an order for costs, given the significance of the breach despite the minimal monetary value of the damages. The respondents argued that nominal damages, being of such a small amount, should preclude the applicants from a costs order.

The court held that the amount of damages awarded did not necessarily dictate the outcome of a costs order. The significance of the breach, regardless of the nominal damages, justified the applicants' entitlement to costs. The court recognised that the breach had substantial implications, warranting the protection of the applicants' legal rights and the deterrence of similar breaches in the future. Consequently, the court ruled in favour of the applicants, granting them nominal damages and an order for costs, reflecting the importance of the breach despite the minimal financial impact.

Orders