Nominal Defendant v Boulter

[2008] QDC 321

DISTRICT COURT OF QUEENSLAND

CITATION:

Nominal Defendant v Boulter [2008] QDC 321

PARTIES:

NOMINAL DEFENDANT

(Plaintiff)

V

JOHN WILLIAM BOULTER

(Defendant)

FILE NO/S:

BD2041/06

DIVISION:

Civil applications

PROCEEDING:

An application for costs and interest

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

18 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

12 December 2008

JUDGE:

Andrews SC DCJ

ORDER:

Judgment for the plaintiff against the defendant in the sum of $101,211.46.  Order that the defendant pay the plaintiff’s costs to be assessed on the standard basis of and incidental to the plaintiff’s application for summary judgment and of the proceeding including reserved costs.

COUNSEL:

Ferrett for the applicant/plaintiff

SOLICITORS:

Cooper Grace Ward for the applicant/plaintiff

McKays Solicitors of Mackay for the respondent/defendant

1. I gave judgment for the plaintiff against the defendant in the sum of $88,525.57 on 11 December 2008.  The parties were not then prepared to make submissions with respect to costs and interest.  They forwarded written submissions dated 12 December 2008 subsequently.

1. The plaintiff seeks interest pursuant to s 47 of the Supreme Court Act 1995 from 29 January 2004. While the plaintiff had incurred some costs prior to that date it submits for that date because that was when it compromised a claim with the injured Fitzgerald. The unspoken premise of the submission seems likely to be that the plaintiff has been kept from its money from 29 January 2004 until judgment and should have interest to compensate it.

1. The defendant submits that interest should run from the date the plaintiff commenced this proceeding against the defendant which was 13 July 2007.  The defendant gives no reason for selecting this date.

1. Each date has a logical basis.  There is ample precedent for the selection of either date.

1. The plaintiff has lost the use of its money since about 29 January 2004 but it was within the plaintiff’s power to limit the loss by commencing the proceeding earlier. It was in the defendant’s interest that the proceeding be commenced promptly because the defendant is a young man of an age when the threat of such litigation would ordinarily be particularly worrisome. On these bases I allow interest from 13 July 2007.

1. For the period from 13 July 2007 the plaintiff seeks interest at 10% per annum and the defendant does not argue with that rate.  I calculate that interest at 10% per annum on $88,525.57 from 13 July 2007 until 18 December 2008 is $12,685.89.  A judgment inclusive of interest would be for the sum of $ 101,211.46. I give judgment for the plaintiff against the defendant in the sum of $101,211.46.

1. I order that the defendant pay the plaintiff’s costs to be assessed on the standard basis of and incidental to the plaintiff’s application for summary judgment and of the proceeding including reserved costs, if any.