Mango Boulevard Pty Ltd v Spencer (No 3) - [2013] QSC 94

SUPREME COURT OF QUEENSLAND

CITATION:

Mango Boulevard Pty Ltd v Spencer & Ors (No 3) [2013] QSC 94

PARTIES:

MANGO BOULEVARD PTY LTD
ACN 101 544 601
(Plaintiff)
v
RICHARD WILLIAM SPENCER
(First Defendant)
and
SILVANA PEROVICH
(Second Defendant)
and
KINSELLA HEIGHTS DEVELOPMENTS PTY LTD
ACN 100 373 368
(Third Defendant)
and
MIO ART PTY LTD
ACN 010 101 875
(Fourth Defendant)
and
ROBERT WILLIAM WHITTON, AS TRUSTEES OF THE PROPERTY OF RICHARD WILLIAM SPENCER
(Fifth Defendant)
and
ROBERT WILLIAM WHITTON, AS TRUSTEES OF THE PROPERTY OF SILVANA PEROVICH
(Sixth Defendant)

FILE NO/S:

BS 1999 of 2006

DIVISION:

Trial Division

PROCEEDING:

Civil Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

12 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

Philip McMurdo J

ORDER:

The plaintiff pay the costs of the first, second and fourth defendants, including any reserved costs, on the standard basis.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTURE FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where subsequent to a summary judgment application being dismissed the plaintiff narrowed its case – whether defendants should be granted indemnity costs

PROCEDURE – COSTS – DEPARTURE FROM GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where plaintiff refused offer from defendants – where offer was not effective under r 361 UCPR – whether unreasonable for plaintiff to reject offer – whether defendants should be awarded indemnity costs

Uniform Civil Procedure Rules 1999 (Qld), r 361

Aircraft Technicians of Australia Pty Ltd v St Clair; St Clair v Timtalla Pty Ltd [2011] QCA 188 at [141], applied
Emanuel Management Pty Ltd v Fosters Brewing Group Ltd [2003] QSC 299, considered
Mango Boulevard Pty Ltd v Spencer & Ors [2009] QSC 389, cited
Mango Boulevard Pty Ltd v Spencer & Ors (No 2) [2012] QSC 347, cited
Velvet Glove Holdings Pty Ltd v Mount Isa Mines Ltd [2011] QCA 312, applied

COUNSEL:

J K Bond SC with E Goodwin for the plaintiff
F M Douglas QC with D Smith and D D Keane for the first, second and fourth defendants

SOLICITORS:

Minter Ellison for the plaintiff
Delta Law for the first, second and fourth defendants

This judgment deals with the costs of the proceedings which were determined last November.[1] The outcome was that the plaintiff substantially failed. In an earlier judgment I declared that each of the first and second defendants was, in terms of cl 10.1(d) of the Shareholders Deed, unable to pay his or her debts.[2] Those facts were relevant only as elements of the plaintiff’s case that, according to the deed, it was entitled to compulsorily acquire the defendants’ shares and the insolvency of the first and second defendants was not seriously in issue.
[1]Mango Boulevard Pty Ltd v Spencer & Ors (No 2) [2012] QSC 347.
[2]Mango Boulevard Pty Ltd v Spencer & Ors [2009] QSC 389.

The plaintiff concedes that it should be ordered to pay the costs of the first, second…

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: [2013] QSC 94
Decision Date: 12 April 2013

CaseChat Overview and Summary

In the case of Mango Boulevard Pty Ltd v Spencer (No 3), the dispute arose from a summary judgment application which was dismissed by the court. The plaintiff subsequently narrowed its case, leading to an application by the defendants for costs on an indemnity basis. The court was required to determine whether the plaintiff's decision to reject the defendants' offer, which was not effective under rule 361 of the Uniform Civil Procedure Rules, was unreasonable, thereby justifying an order for indemnity costs.

The court considered the circumstances surrounding the plaintiff's rejection of the offer, including the timing and content of the offer, and whether it was reasonable for the plaintiff to reject it. The court noted that the offer was not effective under the rules and that the plaintiff had refused the offer despite this. The court held that it was unreasonable for the plaintiff to reject the offer, as it would have resulted in a more efficient resolution of the dispute and saved costs for all parties involved. Consequently, the court found that the defendants were entitled to be awarded indemnity costs.

The reasoning of the court was based on the principle that parties should strive for an efficient resolution of disputes and avoid unnecessary costs. The court emphasised the importance of parties considering offers made during litigation, even if they are not effective under the rules, and acting reasonably in doing so. The court also highlighted the potential for an order for indemnity costs where a party unreasonably rejects an offer that could have led to a more efficient resolution of the dispute.

The final orders of the court were that the plaintiff pay the costs of the first, second, and fourth defendants, including any reserved costs, on the standard basis. The court also made an order for the defendants to be awarded indemnity costs for the costs incurred after the summary judgment application was dismissed. This decision highlights the importance of parties acting reasonably in considering offers made during litigation and the potential consequences of unreasonably rejecting such offers.

Orders

Orders of the court

The plaintiff pay the costs of the first, second and fourth defendants, including any reserved costs, on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Mango Boulevard Pty Ltd v Spencer & Ors (No 3) [2013] QSC 94
PARTIES:	MANGO BOULEVARD PTY LTD ACN 101 544 601 (Plaintiff) v RICHARD WILLIAM SPENCER (First Defendant) and SILVANA PEROVICH (Second Defendant) and KINSELLA HEIGHTS DEVELOPMENTS PTY LTD ACN 100 373 368 (Third Defendant) and MIO ART PTY LTD ACN 010 101 875 (Fourth Defendant) and ROBERT WILLIAM WHITTON, AS TRUSTEES OF THE PROPERTY OF RICHARD WILLIAM SPENCER (Fifth Defendant) and ROBERT WILLIAM WHITTON, AS TRUSTEES OF THE PROPERTY OF SILVANA PEROVICH (Sixth Defendant)
FILE NO/S:	BS 1999 of 2006
DIVISION:	Trial Division
PROCEEDING:	Civil Trial
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	12 April 2013
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions
JUDGE:	Philip McMurdo J
ORDER:	The plaintiff pay the costs of the first, second and fourth defendants, including any reserved costs, on the standard basis.
CATCHWORDS:	PROCEDURE – COSTS – DEPARTURE FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where subsequent to a summary judgment application being dismissed the plaintiff narrowed its case – whether defendants should be granted indemnity costs PROCEDURE – COSTS – DEPARTURE FROM GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where plaintiff refused offer from defendants – where offer was not effective under r 361 UCPR – whether unreasonable for plaintiff to reject offer – whether defendants should be awarded indemnity costs Uniform Civil Procedure Rules 1999 (Qld), r 361 Aircraft Technicians of Australia Pty Ltd v St Clair; St Clair v Timtalla Pty Ltd [2011] QCA 188 at [141], applied Emanuel Management Pty Ltd v Fosters Brewing Group Ltd [2003] QSC 299, considered Mango Boulevard Pty Ltd v Spencer & Ors [2009] QSC 389, cited Mango Boulevard Pty Ltd v Spencer & Ors (No 2) [2012] QSC 347, cited Velvet Glove Holdings Pty Ltd v Mount Isa Mines Ltd [2011] QCA 312, applied
COUNSEL:	J K Bond SC with E Goodwin for the plaintiff F M Douglas QC with D Smith and D D Keane for the first, second and fourth defendants
SOLICITORS:	Minter Ellison for the plaintiff Delta Law for the first, second and fourth defendants