Mitchell v Pacific Dawn Pty Ltd

Case [2003] QSC 179

SUPREME COURT OF QUEENSLAND

CITATION:

Mitchell v Pacific Dawn P/L [2003] QSC 179

PARTIES:

BRUCE JOSEPH MITCHELL
(plaintiff)
v
PACIFIC DAWN PTY LTD ACN 070 358 280
(defendant)

FILE NO/S:

S 3872 of 2001

DIVISION:

Trial Division

PROCEEDING:

Order for Costs

DELIVERED ON:

12 June 2003

DELIVERED AT:

Brisbane

HEARING DATE:

4 April 2003

JUDGE:

B W Ambrose J

ORDER:

I order that the defendant pay to the plaintiff his costs of and incidental to the proceedings to answer the questions posed, to be assessed on an indemnity basis

CATCHWORDS:

COSTS – indemnity costs – where plaintiff succeeded against defendant – whether determination of questions constitutes final relief – where plaintiff had made offer to settle – whether defendant can show order other than indemnity costs appropriate under UCPR 360

Uniform Civil Procedure Rules 1999 (Qld), Part 5, r 353, r 360, r 361, r 361(3), r 483, r 485, r 658, r 659

Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, considered
Davies v Fay [1995] 1 Qd R 509, considered
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, considered
Rosniak v Government Insurance Office (1997) 41 NSWLR 608, considered

COUNSEL:

P J Dunning for the plaintiff
S R Lumb for the defendant

SOLICITORS:

Primrose Couper Cronin Rudkin for the plaintiff
Lethbridge Hogan O’Hanlon for the defendant

  1. AMBROSE J:   On 4 April 2003 the plaintiff succeeded against the defendant upon proceedings taken by the plaintiff pursuant to an order made under UCPR 483 for the determination of two questions recited in para 8 of the Reasons for Judgement.  The first question was whether “any legally binding agreement” resulted from a meeting held on 22 December 2000.  The second question was whether “any agreement of the kind alleged” in the defence was arrived at by the application of improper economic duress by the defendant to the plaintiff so as to render it unenforceable. 

  1. For the defendant it is contended that it succeeded with respect to the first question but failed with respect to the second question. 

  1. In my view such a contention is rather superficial because the first question required the determination of two issues.  The first issue was whether any consideration passed from the defendant to the plaintiff and the second depended upon whether if it did, any resulting agreement was “legally binding” – having regard to the real issue debated on this application which was whether the agreement resulted from the application upon the plaintiff of improper economic duress by the defendant. 

  1. Indeed reference to the answer to the first question (vide para 77 of the Reasons for Judgment) makes it clear that minimal consideration did pass from the defendant to the plaintiff and the agreement was binding subject to the determination of the issue of the application of unconscionable conduct and/or economic duress exercised by the defendant upon the plaintiff. 

  1. That determination was in favour of the plaintiff that the defendant…

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AGLC
Mitchell v Pacific Dawn Pty Ltd [2003] QSC 179
Case
[2003] QSC 179
Decision Date

CaseChat Overview and Summary

In the Federal Court, Mitchell sued Pacific Dawn Pty Ltd over a dispute involving the interpretation of a contract. Mitchell sought to have the contract declared and have certain questions answered about its contents. The court was required to determine whether Mitchell was entitled to indemnity costs, given that he had succeeded against Pacific Dawn, and if the questions posed constituted final relief. The court also needed to consider whether Pacific Dawn could demonstrate that an order other than indemnity costs was appropriate under the Uniform Civil Procedure Rules 360.

Mitchell argued that since he had succeeded in his claims, he was entitled to indemnity costs under the rules. Pacific Dawn contended that while Mitchell had succeeded, the questions posed did not constitute final relief, and thus, indemnity costs were inappropriate. The court considered the nature of the relief sought and granted by Mitchell. It concluded that the questions Mitchell posed, which the court agreed to answer, constituted final relief in the context of this proceeding. Furthermore, the court found that Pacific Dawn had not demonstrated that an order other than indemnity costs was appropriate under the relevant rules. Given these findings, the court ruled that Mitchell was entitled to indemnity costs for the proceedings to answer the questions posed.

The court's decision hinged on the nature of the relief granted and the absence of any showing by Pacific Dawn that an alternative costs order would be more appropriate. Mitchell was therefore granted the costs of and incidental to the proceedings to answer the questions posed, to be assessed on an indemnity basis. This ruling confirmed Mitchell's entitlement to his costs as the successful party in the matter.

Orders

Orders of the court

I order that the defendant pay to the plaintiff his costs of and incidental to the proceedings to answer the questions posed, to be assessed on an indemnity basis

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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