Masci v Australian Frameless Glass Solutions (No 2)

[2011] QDC 71

[2011] QDC 71

DISTRICT COURT

CIVIL JURISDICTION

JUDGE DEVEREAUX SC

No 3099 of 2010

FREDERICK ALBERT MASCI and ANOR	Plaintiff
and
AUSTRALIAN FRAMELESS GLASS SOLUTIONS (ACN 135 609 488) and OTHERS	Defendant

BRISBANE

..DATE 12/05/2011

JUDGMENT

CATCHWORDS
Procedure - Costs - Departing from the general rule - where application for summary judgment dismissed - where defence case not comprehensively pleaded

HIS HONOUR:  I gave judgment in this application on 27 April 2011.  I have since received written submissions as to costs.  I have taken time to consider the submissions.

Mr Anderson for the plaintiff has submitted that the third defendant defeated the application, which was an application for summary judgment, upon an argument that was not pleaded.  He submits the order should be that the parties' costs be in the cause or that the third defendant's costs be in the cause.

Ms Muir, referring me to UCPR Rule 681 and cases on the point seeks costs following the event.

Relevantly, the third defendant pleaded that the guarantee "should be declared void" as against him for four reasons, two of which I consider without merit.  The remaining two were:

• The defendant was not availed of the opportunity to obtain independent legal advice;

• The document was not described adequately to the defendant by the plaintiff and other defendants and he was therefore unaware of its contents.

Mr Anderson argues that the submission that the third defendant was in a position of special disadvantage and that the plaintiff sought to take unconscientious advantage of him does not reflect the pleaded defence, nor was unconscionable conduct, which I have concluded is the case the third defendant seeks to run, pleaded in the defence.

Mr Anderson also submits the application has unearthed flaws in the defence case and one expects an amended defence will be filed.  I think Mr Anderson has a point so far as the pleaded defence goes.

The third defendant's position must have been much clearer to the plaintiff upon receipt of the affidavit in response to the application.

Ms Muir informs me that the third defendant served the affidavit with a letter dated 25 February 2011 inviting the plaintiff to consent to the dismissal of the application with no order as to costs.  The letter is marked "without prejudice - save as to costs."  Ms Muir argues that the letter amounts to a "Calderbank offer"[1] entitling the defendant to a costs order and at least upon receipt of the affidavit the plaintiff ought reasonably to have been aware the third defendant relied on a point which would entitle him to have the application dismissed thereby engaging Rule 299.

[1] Calderbank v Calderbank (1975) 3 All ER 333

The third defendant's affidavit bears the filing date of 28 February 2011.  By that date it is reasonable to assume the plaintiff had received and had some time to consider the affidavit and consequently its position with respect to the application.

It remains to be seen whether the third defendant will amend the defence and succeed upon it.  The "without prejudice - save as to costs" letter does not contain notice that the defence will be amended.  No proposed amended defence has been proffered.

I am persuaded the usual order should not be made in this case.  The plaintiff's case is a straightforward one.  The defence is, arguably at least, yet to be properly pleaded.

I conclude that the third defendant's costs after the filing of the affidavit, that is, after 28 February 2011, should be its costs in the cause.  The plaintiff's costs before that date should be its costs in the cause.

The orders are:

1. The third defendant's costs of and incidental to the application from 28 February 2011 will be its costs in the cause;

1. The plaintiff's costs of and incidental to the application incurred before 28 February 2011 will be its costs in the cause.

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