Lyschrome Pty Limited (ACN 005 846 104) v Peter Cusato Transport (a Firm) (ABN 20764790) (No 2)

[2017] QDC 182

DISTRICT COURT OF QUEENSLAND

CITATION:

Lyschrome Pty Limited (ACN 005 846 104) v Peter Cusato Transport (a Firm) (ABN 20764790) (No 2) [2017] QDC 182

PARTIES:

LYSCHROME PTY LIMITED (ACN 005 846 104) 

(plaintiff)

v 

PETER CUSATO TRANSPORT (a Firm) (ABN

20764790)

(defendant)

FILE NO/S:

1761/13

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court

DELIVERED ON:

3 July 2017

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2017

JUDGE:

Devereaux SC DCJ

ORDER:

In addition to the order made on 16 June 2017,

1.          That there be judgment for the plaintiff for interest in the amount of $80,144.00; and

2.          That the defendant pay the plaintiff’s costs on the indemnity basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – RELEVANT CONSIDERATIONS GENERALLY – where the plaintiffs made an offer to settle – where this offer was not accepted by the defendant – where the plaintiff obtained an order no less favourable than the offer – where the defendant submits there was no evidence the plaintiff was at all material times willing and able to carry out the offer – where this offer did not make explicit reference to costs – whether the offer was sufficiently certain

INTEREST – RATE OF INTEREST – where the plaintiff submissions provided for calculations and rates of interest

Norfolk Estates Pty Ltd v Cardno (Qld) Pty Ltd(No 3) [2013] QDC 308

Reid & Anor v Stephens Luxury Homes Pty Ltd & Anor (No 2) [2012] QSC 231

Civil Proceedings Act 2001 (Qld) s. 58(3)

Uniform Civil Procedure Rules 1999 (Qld) rr. 353, 355, 360, 681(1), 702

COUNSEL:

Mr R. A. Parsons for the plaintiff

Mr B. F. Charrington for the defendant

SOLICITORS:

CLS Legal for the plaintiff

HWL Ebsworth Lawyers for the defendant

1. I gave judgment on this claim on 16 June this year.  I have since received written submissions with respect to further orders.

1. The plaintiff seeks interest and costs on the indemnity basis.  The defendant resists the application for costs on the indemnity basis.

Interest

1. The court has power under s 58(3) of the Civil Proceedings Act2011 (Qld) to order that there be included in a judgment amount, interest for all or part of the amount and for all or part of the period between the date when the cause of action arose and the date of judgment.

1. Counsel for the plaintiff, in his written submissions, has set out a table of interest amounts calculated according with Practice Direction 7 of 2013 of the Supreme Court. 

1. I am satisfied the award of interest should be added to the judgment in the amount of $80,144.00.

Costs

1. Uniform Civil Procedure Rules r 681(1) provides that costs generally follow the event, the default order being for costs on the standard basis: r 702.

1. Rule 353 relevantly provides that a party to a proceeding may serve an offer to settle the claim on conditions specified in the offer.  The offer must be in writing and contain a statement that it is made under Part 5 of Chapter 9 of the Rules.

1. Rule 335 relevantly provides that a party must specify in the offer a period not less than 14 days after the day of service of the offer, during which the offer is open for acceptance.  The offer may not be withdrawn during that period without the court’s leave. 

1. In a letter dated 14 November 2016, the plaintiff’s solicitor wrote to the defendant’s solicitor in the following terms:

“We have instructions to attempt to settle these proceedings on the following terms:

1.The defendant pay the plaintiff a sum of $150,000 within 14 days of acceptance of this offer in full and final settlement of the matters subject of the above proceedings; and

2.The plaintiff takes all reasonable steps to file a notice of discontinuance in the above proceedings within 14 days of the payment referred to above.”

The letter went on to advise that the offer was open for 14 days after the date of service.

1. UCPR r 360 provides:

“360      Costs if offer by plaintiff

(1)       If—

(a) the plaintiff makes an offer that is not accepted by the defendant and the plaintiff obtains an order no less favourable than the offer; and

(b) the court is satisfied that the plaintiff was at all material times willing and able to carry out what was proposed in the offer;

the court must order the defendant to pay the plaintiff’s costs calculated on the indemnity basis unless the defendant shows another order for costs is appropriate in the circumstances.”

1. The plaintiff’s offer was not accepted.  The plaintiff has obtained an order no less favourable than the offer, namely judgment in the sum of $292,000. 

1. The defendant submits there is no evidence the plaintiff was at all material times willing and able to carry out the offer.  Reference is made to Reid & Anor v Stephens Luxury Homes Pty Ltd & Anor (No 2) [2012] QSC 231.

1. The nature of the claim in that case is not clear from Dalton J’s short reasons.  In the present case, a claim for payment under, or damages for, breach of a contract, the plaintiff had nothing to do having made the offer but to wait for a response.  In any case, the plaintiff was bound by the offer during the material period, subject to obtaining leave of the court.

1. The defendant also submits that an offer made under r 360(1) must be sufficiently certain. The present offer, it was submitted, did not make any reference to costs. The plaintiff submitted the difficulty of meaningfully interpreting such an offer was highlighted by Reid DCJ in Norfolk Estates Pty Ltd v Cardno (Qld) Pty Ltd [2013] QDC 308 at [6]. The submission is that these issues render the present case an inappropriate one for an order for indemnity costs.

1. The offer contained in the letter was expressed to be in full and final settlement of the matters the subject of the proceeding.  The claim was for damages with interest and costs.  As a matter of interpretation of the letter, I would conclude the offer was to accept the stated amount inclusive of interests and costs. 

1. In any case, differently from the case before Reid DCJ, it is not reasonably open to suggest that the sum of the stated amount plus interest and costs to the date of the offer would exceed the amount of the judgment.

1. In the result, the order for costs must be on the indemnity basis pursuant to r 360.

1. The orders will be, in addition to the order made on 16 June 2017, that there be judgment for the plaintiff be increased to include interest in the amount of $80,144.00 and that the defendant pay the plaintiff’s costs on the indemnity basis.