Nolan Meats Pty Ltd v Waltisbuhl - [2018] QDC 39

DISTRICT COURT OF QUEENSLAND

CITATION:

Nolan Meats Pty Ltd v Waltisbuhl [2018] QDC 39

PARTIES:

NOLAN MEATS PTY LTD
(Appellant)

v

WAYNE RICHARD WALTISBUHL
(Respondent)

FILE NO/S:

4229/2014

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

21 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Sheridan DCJ

ORDER:

The respondent pay the appellant’s costs of the appeal assessed on the indemnity basis.

CATCHWORDS:

PROCEDURE – COSTS – where appellant had a contractual entitlement to have its costs paid on an indemnity basis – where appellant had substantial success on appeal – where costs of the hearing below had been ordered on the standard basis – whether the court should exercise its discretion as to costs in relation to the appeal in a manner other than in accordance with the appellant’s contractual entitlements

COUNSEL:

S J Webster for the appellant
M K Callanan for the respondent

SOLICITORS:

James Conomos Lawyers for the appellant
S.J. Gurnsey & Company for the respondent

The court gave its decision on 20 March 2017.[1] The proceedings arose out of a claim by the appellant for the costs of collecting monies owing pursuant to the terms of a credit application between the appellant and the respondent for the supply of meat by the appellant to the respondent (the agreement).
[1]Nolan Meats Pty Ltd v Waltisbuhl [2017] QDC 57.

Relevantly, clause 5(b) of the agreement provided that the appellant reserves the right to charge:

…all costs associated with the collection of overdue accounts including but not limited to legal fees (on a solicitor/own client basis) and collection agent fees.

At the hearing, there was no dispute between the parties that the words “on a solicitors/own client basis” as used in the agreement were synonymous with “indemnity costs”. Further, consistent with the view of the learned Magistrate, the words used were considered to “plainly and unambiguously” give to the appellant a contractual entitlement to its legal costs on an indemnity basis.

The real dispute on the appeal was whether the learned Magistrate was right to interpret those words as requiring the appellant to either obtain an assessment of costs or lead expert evidence from a costs assessor to prove its claim and the right of the appellant to claim in the Magistrates Court the costs of proceedings in the District Court.

On appeal, having accepted that neither an assessment nor expert evidence was necessary and that there was an entitlement in one court to claim the costs of proceedings in another court, the appeal was allowed and the respondent was ordered to pay the appellant the sum of $23,189.47.

Notwithstanding the existence of the contractual entitlement, given way the hearing occurred in the Magistrates Court it was determined that the appellant should only be awarded the costs of the Magistrates Court proceedings on a standard basis.

At the time of making its decision, the court requested the parties make written submissions on the question of costs of the…

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: [2018] QDC 39
Decision Date: 21 March 2018

CaseChat Overview and Summary

Nolan Meats Pty Ltd, the appellant, and Waltisbuhl, the respondent, were parties to a contractual agreement which included an indemnity costs clause. The dispute arose from the interpretation and enforcement of this clause in the context of an appeal against a lower court's decision. The matter was heard in the Supreme Court of Victoria, where the central issue was the appropriate basis for assessing costs on appeal, given the contractual entitlement to indemnity costs and the lower court's order for costs on the standard basis.

The court was required to determine whether, in exercising its discretion under the Uniform Civil Procedure Rules, it should deviate from the contractual indemnity costs provision in favour of a standard costs order. This involved a consideration of the nature and extent of the appellant's success on appeal, the fairness of applying the contractual terms, and the implications for both parties. The court had to balance the principle of enforcing contractual terms with the equitable consideration of costs outcomes in light of the appellant's substantial success.

The court found that the appellant was entitled to have its costs on appeal assessed on an indemnity basis, as per the contractual agreement. The court held that the contractual term was clear and unambiguous, and there were no circumstances justifying a departure from this entitlement. The appellant's substantial success on appeal was a significant factor in this determination, reinforcing the appropriateness of the indemnity costs order. The court concluded that enforcing the contractual term was consistent with the principles of fairness and justice in the circumstances of the case.

The court ordered that the respondent pay the appellant's costs of the appeal, assessed on the indemnity basis, in accordance with the contractual terms. This decision upheld the principle of enforcing agreed-upon costs provisions in contractual agreements, particularly in cases where the prevailing party achieves substantial success.

Orders

Orders of the court

The respondent pay the appellant’s costs of the appeal assessed on the indemnity 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:	Nolan Meats Pty Ltd v Waltisbuhl [2018] QDC 39
PARTIES:	NOLAN MEATS PTY LTD (Appellant) v WAYNE RICHARD WALTISBUHL (Respondent)
FILE NO/S:	4229/2014
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Brisbane
DELIVERED ON:	21 March 2018
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGE:	Sheridan DCJ
ORDER:	The respondent pay the appellant’s costs of the appeal assessed on the indemnity basis.
CATCHWORDS:	PROCEDURE – COSTS – where appellant had a contractual entitlement to have its costs paid on an indemnity basis – where appellant had substantial success on appeal – where costs of the hearing below had been ordered on the standard basis – whether the court should exercise its discretion as to costs in relation to the appeal in a manner other than in accordance with the appellant’s contractual entitlements
COUNSEL:	S J Webster for the appellant M K Callanan for the respondent
SOLICITORS:	James Conomos Lawyers for the appellant S.J. Gurnsey & Company for the respondent