McLeod as liquidator of CJ and AJ Engineering P/L v Wotton

[2014] QDC 27

DISTRICT COURT OF QUEENSLAND

CITATION:

McLeod as liquidator of CJ & AJ Engineering P/L & Anor v Wotton [2014] QDC 27

PARTIES:

JONATHAN PAUL McLEOD as liquidator of CJ & AJ ENGINEERING PTY LTD (in liquidation)
A.C.N. 106 686 239
(first plaintiff)

and

CJ & AJ ENGINEERING PTY LTD (in liquidation)
A.C.N. 106 686 239
(second plaintiff)

and

ADRIAN JOHN WOTTON
(defendant)

FILE NO:

853/09

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

17.02.14

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Farr SC, DCJ

ORDER:

The defendant pay the first and second plaintiffs’ costs of and incidental to the proceedings on an indemnity basis pursuant to r 360(1) of the Uniform Civil Procedure Rules 1999

CATCHWORDS:

CIVIL – COSTS - application for indemnity costs – Uniform Civil Procedure Rules – r 360 – offer to settle – where plaintiffs satisfy requirements under r 360 - where defendant made no submissions as to costs - where another order is not appropriate in the circumstances

COUNSEL:

SOLICITORS:

McInnes Wilson Lawyers for the first and second plaintiffs
No appearance for the defendant

Background

1. On 17 December 2013 I made orders and delivered reasons in respect of these proceedings.[1]

   [1]See McLeod as Liquidator of CJ and AJ Engineering Pty Ltd (in liq) & Anor v Wotton [2013] QDC 324.

1. The orders were in favour of the first and second plaintiffs (the plaintiffs) granting the relief sought by the plaintiffs in the proceedings.

1. Order 3 invited written submissions as to costs from the parties within seven days of the date of judgment.

1. The plaintiffs submit that the defendant should be ordered to pay the plaintiffs’ costs of and incidental to the proceedings:

a. on an indemnity basis pursuant to r 360(1) of the Uniform Civil Procedure Rules 1999 (“UCPR”);

b.          alternatively, on an indemnity basis by virtue of the principles articulated in Calderbank v Calderbank [1975] 3 All ER 333.

1. The defendant has made no submissions as to the issue of costs.

Rule 360 – UCPR

1. Rule 360 of the UCPR provides as follows:

“(1)       If –

(a)the plaintiff makes an offer to settle that is not accepted by the defendant and the plaintiff obtains a judgment no less favourable than the offer to settle; 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 plaintiffs’ costs calculated on the indemnity basis unless the defendant shows another order for costs is appropriate in the circumstances.

(2)If the plaintiff makes more than 1 offer satisfying subrule (1) the first of those offers is taken to be the only offer for this rule.”

1. Accordingly, in order to meet the requirements of r 360, the plaintiffs must demonstrate that:

a.            they made an offer to settle for the purposes of the rule;

b.            the offer was not accepted by the defendant;

c.            the plaintiffs have obtained a judgment no less favourable than the offer to settle; and

d.            the plaintiff was, at all material times, willing and able to carry out what was proposed in the offer.

Order Made

1. The judgment of this court ordered the defendant to pay to the first plaintiff the sum of:

a.          $80,000;

b.          Interest at 9.5% from 26 March 2009 to 17 December 2013.

1. The plaintiffs calculate this interest to be $35,959.45 (being $80,000 times 9.5 per cent divided by 365 x $1,727.00).

1. Accordingly, the judgment, excluding any amount for costs, resulted in the defendant being ordered to pay the first plaintiff the sum of $115,959.45.

Offer

1. On 23 November 2012, McInnes Wilson lawyers on behalf of the plaintiffs made an offer to compromise the proceedings.[2]

   [2]Affidavit of Glenn Allen Caligaris sworn on 17 December 2013, Exhibit GAC-7

1. That offer:

a. was expressed to be pursuant to Ch 9, Pt 5 of the UCPR. Accordingly, it was an offer to settle for the purposes of r 360 of the UCPR;

b.          provided for a full compromise of the proceedings;

c.          provided that the plaintiffs would accept the sum of $70,000 from the defendant in full satisfaction of the subject matter of the proceedings.

1. On 26 November 2012, McGinness Wilson lawyers on behalf of the plaintiffs sent to the lawyers acting on behalf of the defendant a reiteration of the offer referred to in paragraph 12 above, thus ensuring the offer was open for no less than 14 days in accordance with r 355 of the UCPR.

1. As a result, the plaintiffs have obtained a judgment no less favourable than the offers to settle dated 23 November 2012 and 26 November 2012.

1. Those offers clearly demonstrate that the plaintiffs were willing to accept both the compromise, and the release expressed in the offers.

1. Additionally, a series of communications, on a without prejudice basis, from the plaintiffs’ solicitors to the defendant’s solicitors throughout the course of the proceedings[3] demonstrated ongoing willingness on the part of the plaintiffs to compromise the proceedings, in each case for amounts significantly less than the judgment amount that has been ordered.

   [3]See exhibits to Affidavit of Glenn Allen Caligaris sworn 17 December 2013

Conclusion

1. Pursuant to r 360 of the UCPR, the court must order the defendant pay the plaintiffs’ costs calculated on the indemnity basis provided the plaintiffs meet the criteria set out in sub-sections (1)(a) and (1)(b) unless the defendant shows another order for costs is appropriate in the circumstances.

1. The onus rests upon the defendant to demonstrate that another order is appropriate in the circumstances.  As I have already stated the defendant has made no submissions on the issue of costs.

1. Putting the absence of a submission from the defendant to one side, I am nevertheless satisfied that another order is not appropriate in the circumstances and that the appropriate order is that which accords with the anticipated result as provided for in r 360.

1. In my opinion the plaintiffs have met the necessary elements of r 360(1), and that the order sought should be made.

Calderbank Offers

1. Given my findings above, there is little utility in determining whether the order sought should be made on this basis.

Order

1. The defendant pay the first and second plaintiffs’ costs of and incidental to the proceedings on an indemnity basis pursuant to r 360(1) of the Uniform Civil Procedure Rules 1999.