Kgs (Holdings) Pty Ltd v Aspinall

[2011] QDC 75

[2011] QDC 75

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3696 of 2010

KGS (HOLDINGS) PTY LTD ACN 122839212	Plaintiff
and
ANDREW STUART ASPINALL I & N MANSFIELD PTY LTD ACN 065839536 Also Known as I & N OVERNIGHT PTY LTD NEVILLE MANSFIELD and NOW TRANSPORT PTY LTD ACN 129489087	Defendants

BRISBANE

..DATE 30/03/2011

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 190, r 292, r 687

Costs fixed by court on successful application for judgement without any discounting - plaintiff contractually entitled to indemnity costs

HIS HONOUR:  The court makes an order in terms of the initialled draft which grants summary judgment under rule 292 against the respondent to the application, who's the fourth defendant in the proceeding.

As Mr Chesterman, representing the applicant/plaintiff says, the judgment can equally appropriately be seen as based on admissions pursuant to rule 190.  The respondent has been served with the application for judgment and relevant supporting material, but not appeared today when called, perhaps unsurprisingly.  

He is sued on the basis of a guarantee that he gave upon assignment or replacement of a lease which the plaintiff granted of its premises.  The original lessee was the first defendant company.  The replacement was the second defendant company, Now Transport Pty Ltd.  The third defendant came in as guarantor for the first defendant.  Both of them are sought to be made liable for matters to do with the second defendant.  The fourth defendant, as a director of the second defendant, came in as the "new guarantor", in the contractual documents in evidence.

The considerations for the defendants are different in those circumstances, the third defendant, for example, being in a position to assert that his responsibility as guarantor for payment of rent was limited to a six month period.  As indicated, only the fourth defendant's situation is relevant today. 
His defence in paragraph 14 admits paragraph 14(i) of the statement of claim before going on to deny that the plaintiff had suffered loss and damage as pleaded in paragraph 14(ii) of the statement of claim and giving reasons therefor.  There has been amendment of the statement of claim since the defence referred to, but it seems to me appropriate in the circumstances, particularly where it doesn't make Mr Aspinall's situation any worse, to refer to the original defence. 

The admitted paragraph of the original statement of claim asserts that the plaintiff has suffered and continues to suffer loss and damage as a result of the breach of the lease and the assignment in the amount of $152,929.41 in respect of rent from the 1st of June 2010 to the 30th of January 2011. 

The principal amount of the judgment sought is $142,187.40, the reduction being explicable in terms of other recourse that the plaintiff had. Interest is claimed pursuant to section 47 of the Supreme Court Act 1995 in the amount of $11,510.68. There's affidavit material before the court supporting the calculation.

For the purposes of reference to rule 190, it's the respondent's good fortune that the judgment amount is reduced.  He can hardly complain of the interest component which only marginally takes the amount over that which he effectively admitted was owing.  Interest is the usual consequence of delay in payment. 
I might say, the defence which Mr Aspinall presents in relation to the balance of the plaintiff's claim is irrelevant today.  The court also fixes the plaintiff/applicant's costs in an amount of $6,260, which is ordered by the affidavit of Mr Humzy-Hancock.  The court is entitled under rule 687 to fix costs and order a party to pay them to another party. 

Ordinarily that exercise would be based on a discounting of the costs which it was made to appear to a busy judge would be recoverable on an assessment.  No discount is offered here, the plaintiff basing its claim on a contractual entitlement.  See clause 13.10 of the deed of assignment and consent to assignment of lease; that obliges the fourth defendant as new guarantor to pay on demand and/or to indemnify the lessor against all of the lessor's costs, charges and expenses, including legal costs on a full indemnity basis in connection with anything done by the lessor under clause 13.

Clause 13 is widely drawn.  13.5 in particular makes it clear that it covers court proceedings to seek and enforce any judgment.  That's the basis of what's probably an unusual order under rule 687.  Order as per initialled draft.

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