Lauder Pty Ltd v Angor Investments Pty Ltd and Anor (No 2)

[2013] QSC 305

SUPREME COURT OF QUEENSLAND

CITATION:

Lauder Pty Ltd v Angor Investments Pty Ltd and Anor (No 2) [2013] QSC 305

PARTIES:

LAUDER PTY LTD
ACN 084 277 574
(plaintiff)
v
ANGOR INVESTMENTS PTY LTD
ACN 103 899 798
(first defendant)
GORDON HUTCHISON AND ANNETTE HUTCHISON

(second defendants)

FILE NO/S:

BS 3482 of 2013

DIVISION:

Trial Division

PROCEEDING:

Civil Trial – Further Order

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

5 November 2013

DELIVERED AT:

Brisbane

JUDGE:

Philip McMurdo J

ORDER:

The defendants pay to the plaintiff its costs of the proceeding, to be assessed in all respects as if the proceeding had been in the District Court and to be assessed upon the indemnity basis as and from 8 July 2013.

CATCHWORDS:

PROCEDURE – COSTS – SCALES OF COSTS – SCALE APPLICABLE – where the plaintiff brought proceedings for recovery of possession of land – where the plaintiff was successful – whether the costs should be assessed on the Supreme or District Court scale

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where the defendants refused an offer to settle from the plaintiff – where defendants defended case on submissions which could not be considered as being seriously arguable – whether an order should be made for the defendants to pay the plaintiff’s costs upon the indemnity basis

District Court of Queensland Act 1967 (Qld), s 68

COUNSEL:

No appearance for the plaintiff, the plaintiff’s submissions were heard on the papers

No appearance for the defendants

SOLICITORS:

Wonderley & Hall for the plaintiff
The second defendant appeared on behalf of the first defendant by leave

The second defendants appeared on their own behalf

1. This judgment concerns the costs of this proceeding which I determined in the plaintiff’s favour.[1]  The plaintiff was given judgment for the recovery of possession of part of its shopping centre together with a money judgment in an amount of $29,967.69.  The plaintiff then sought an order for the costs of the proceedings, to be assessed upon an indemnity basis.  I queried whether that order would be appropriate when the case seemed to be one which could have been brought in the District Court.  The plaintiff asked for an opportunity to consider that question and to provide written submissions and evidence on the point.

   [1]Lauder Pty Ltd v Angor Investments Pty Ltd and Anor [2013] QSC 175.

1. In its subsequent written submission, the plaintiff presses its claim for indemnity costs, to be assessed as a case properly brought in this court. It relies upon an affidavit sworn by its managing director, which is said to be relevant to the value of the relevant land. Section 68(1)(b)(xi) of the District Court of Queensland Act 1967 (Qld) provides the District Court with jurisdiction to hear a claim for the recovery of possession of land where the value of the land does not exceed the monetary limit of that court’s jurisdiction. By s 68(2), that monetary limit is $750,000, as it was when this proceeding was commenced on 17 April 2013.

1. By s 68(3)(b), for the purposes of determining whether or not the District Court has jurisdiction, the value of relevant land is to be according to the most recent valuation, current at the time of instituting the proceedings, made by the Valuer-General or, absent such a valuation, the current market value of the land exclusive of its improvements. The affidavit upon which the plaintiff now relies exhibits what is said to be the most recent valuation by the Valuer-General of the relevant land. As the deponent swears, the Valuer-General’s valuation of what is said to be the relevant land was $730,000. If, in truth, that was a valuation of the relevant land, this evidence would prove that the District Court had jurisdiction, contrary to the plaintiff’s submission.

1. The affidavit also refers to a valuation performed by a firm of valuers in October 2011.  The full valuation is not exhibited to the affidavit.  But the extract which is in evidence shows a value for what is said to be the relevant land of $1,080,000. 

1. The difficulty with the evidence of these two valuations is that they refer to the wrong parcel of land.  Each of those valuations related to lot 7 on SP155353.  The lease by the plaintiff to the first defendant was not for lot 7, but for part of lot 6 on SP155353.  Lot 6 is described in the extract from the (private) valuer’s report as the “Main Shopping Centre”, having a land area of 2.913 hectares improved by a shopping centre with a net lettable area of 4,802 square metres including a supermarket and a number of specialty tenancies.  Lot 7 is there described as having an area of 4,310 square metres and being improved by a McDonald’s restaurant.  The lease shows the area which was leased to the first defendant as shop number 2 within lot 6, occupying 216 square metres.  It is only that land which was the subject of the claim for recovery of possession.  There is no basis for thinking that the relevant land had a value which exceeded the monetary limit of the District Court. 

1. Therefore, this case could and should have been brought in the District Court. 

1. As for the claim for indemnity costs, the plaintiff relies upon the terms of its offer of compromise contained in the letter of 8 July 2013.  It then offered to settle upon the basis that the outstanding moneys would be paid by the first and second defendants and that the first defendant would give vacant possession of the shop.  Each party was to bear its own costs of the proceeding.  The defendants not only rejected that offer, but as should appear from the principal judgment, defended the case by submissions which could not be considered as seriously arguable.  I am persuaded that the defendants’ conduct of the case from that point was so unreasonable as to warrant the imposition of indemnity costs. 

1. Therefore, it will be ordered that the defendants pay to the plaintiff its costs of the proceeding, to be assessed in all respects as if the proceeding had been in the District Court and to be assessed upon the indemnity basis as and from 8 July 2013.