Nominal Defendant v Star Motorcycles P/L (No 2)

[2014] QDC 49

DISTRICT COURT OF QUEENSLAND

CITATION:

Nominal Defendant v Star Motorcycles P/L & Anor (No 2) [2014] QDC 49

PARTIES:

NOMINAL DEFENDANT

(plaintiff)

v

STAR MOTORCYCLES PTY LTD

(first defendant)

and

STEPHEN LENARD WUST

(second defendant)

FILE NO/S:

D77/12

DIVISION:

Civil

PROCEEDING:

Applications in pending proceeding

ORIGINATING COURT:

Toowoomba, District Court

DELIVERED ON:

21 March 2014

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Dorney QC DCJ

ORDERS AND DIRECTIONS:

A.   I order that: 

1.   the plaintiff have leave to amend its Claim and Statement of Claim to include those sums alleged to be incurred on and after 6 November 2006;

2.   the plaintiff pay the first defendant’s costs of and incidental to the plaintiff’s application to amend – severed from the substituted defendant application - and of the first defendant amending its defence, including costs thrown away by reason of such amendment, to be assessed on the standard basis;

3.   the first defendant pay 50% of the plaintiff’s costs of and incidental to the first defendant’s application, to be assessed on the standard basis;

4.   otherwise, there be no order as to costs.

B.   I direct that:

1.   the Amended Claim and Statement of Claim be filed by 28 March 2014;

2.   the Amended Defence of the First Defendant be filed by 25 April 2014;

3.   a Reply by the Plaintiff, if any, be filed by 9 May 2014.

CATCHWORDS:

Costs - failure to identify appropriate party/true defendant – limitation point - amendment to pleadings – effect of amendments

LEGISLATION CITED:

COUNSEL:

Uniform Civil Procedure Rules 1999 (Qld), r 91(3), r 304(2), r 307(2), r 377(1)(c)

D Fraser for the applicant/first defendant

K Holyoak for the respondent/plaintiff

SOLICITORS:

Jensen McConaghy for the applicant/first defendant

Cooper Grace Ward for the respondent/plaintiff

Introduction

1. On 10 March 2014 I published reasons in the determination of two applications (brought by the plaintiff and the first defendant, respectively). I also gave leave to both parties to file, and serve, submissions on remaining issues and costs.

1. Both parties have, in a timely way, responded with such written submissions.

Directions

1. The plaintiff has contended that certain directions should be made, in order to facilitate the orderly progression of the proceeding.  For its part, the first defendant states that it has no objection to those directions that are sought. 

1. Accordingly, I will make orders in accordance with those agreed directions. 

First defendant’s legal identification  

1. A considerable amount of the time during the hearing, and a not inconsiderable amount of the written submissions relied upon at that hearing, were devoted to what should have been done, and what ought as a result of the hearing to be done, concerning the identification of the first defendant.

1. There is no doubt, as the first defendant concedes, that it did not comply with r 91(3) of the Uniform Civil Procedure Rules (“UCPR”), to the extent that it did not file and serve, with its notice of intention to defend, the statement of the names and places of residence of all persons who were carrying on business under the name of the then “named” first defendant as at the day the proceeding was commenced. 

1. Although the plaintiff submits that compliance with that rule would have brought to the parties’ attention the name of the true first defendant (namely, Star Motorcycles Pty Ltd, which was the subject of the order that I did make that day), it is not clear to me at all that that would necessarily have been the case.  As can be discerned from the transcript of the hearing, it was only after the search of other records – not then even in evidence – that the parties came to the realisation that it was Star Motorcycles Pty Ltd which needed to be substituted as the first defendant. This was a fact that should have been known to the first defendant.

1. Part of the problem which was caused was the citing by the plaintiff of an ABN for the “business name” of “Toowoomba Yamaha”.  It was obvious beyond argument that that ABN was wrong. 

1. Taking all the relevant facts into account, I reach the determination that no party was any more, or less, blameworthy than the other and that the resolution of the true name of the first defendant was resolved only because of what occurred during the hearing itself.  Thus, I intend not to award any costs over that issue to either the plaintiff or the first defendant. 

Amendment of plaintiff’s pleadings and “cause of action”

1. It was always going to be necessary for the plaintiff to amend both its Claim and its Statement of Claim, due to an acknowledgement that $30,484.96 needed to be deducted from the original claim of $741,934.93. That amendment needed, pursuant to r 304(2) of the UCPR, to come to court, no consent being forthcoming (as could have been offered by the first defendant). Such costs are governed by r 307(2). Additionally, it was always going to be necessary for the plaintiff to regularise the pleading in terms of alleging the successive causes of action which were at the heart of its submissions concerning the proper statutory construction of the relevant provision which gave, and gives, the plaintiff its right to sue. And, since the amendments to the Claim itself, by reason of the successive causes of action, come within r 377(1)(c) of the UCPR, an application to the court was inevitable.

1. Nevertheless, although the first defendant relied upon both the power to strike out a pleading and the power to give summary judgment for a defendant concerning the $30,484.96, that was only part of it. This was because the primary concern in seeking the strike out concerned the whole of the plaintiff’s claim (on the basis that there was only one cause of action and that the time limitation for that single cause had expired).  This meant that the first defendant was always going to contest the issue of the plaintiff having successive causes of action open to it upon which to sue which the first defendant lost.  It would have brought its application regardless of whether the plaintiff had indicated to it that it intended to make the amendments that have now been permitted, despite a request to the first defendant to attend to matters “expeditiously” [though the email of 9 December was essentially directed to a “striking out” based on the pleaded defence (which alleged a single cause of action)].  

1. The reason why both grounds of the first defendant’s application were refused was that the first defendant did not succeed on its primary argument and because, though the first defendant would have been entitled to the more limited relief, it then made little sense to either strike out parts of the Statement of Claim or give summary judgment (for no amount of money at all) by simply refusing the plaintiff a right to sue for a relatively small time-barred sum, in circumstances where the plaintiff had indicated a significant time before the hearing that it intended to make most, at least, of the amendments (which it has now been permitted to do). 

Effect of amendments

1. There is no doubt that it will be necessary for the first defendant, given the somewhat significant changes, particularly to the Statement of Claim, to also significantly change its Defence. 

1. Given the survey that I have already done, and taking note of the conclusions that I have reached in the original Reasons for my decision regarding all applications, the plaintiff should bear the costs that are incurred by the first defendant in consequential amendments, and any consideration with respect to them, following upon the Amended Claim and the Amended Statement of Claim, severed from the substituted defendant point.  

Outcome on costs

1. I have canvassed the major areas of dispute agitated by the parties in the two applications that I heard. 

1. As can be seen from that analysis, there are procedural “faults” on both sides. And there is no conclusion that can be reached that either application has been “wholly successful”, except - and that to a part only - on the limitation point regarding the underlying cause of action.  While the plaintiff has contended that it is not an indulgence for it to seek to make the amendments that it has, I can see no other way of characterising it, particularly where part withdrawal requires leave, as here.

1. Apart from the limitation point, it would be extremely difficult, and somewhat costly, for an assessment of costs to be made by process of discerning, and then making costs orders for, each separate factor involved in the determination of these two applications (on the basis of who prevailed on the factor). Since, in any event, my own conclusion is that there would be little difference in terms of the overall outcome when balancing the benefit for each of the respective parties by making orders of that kind, I conclude that the costs of both the plaintiff and the first defendant lie where they fall, apart from the costs necessarily incurred in bringing, and consequential upon, the plaintiff’s amendments to the substantive pleading and apart from some order reflecting the plaintiff’s success on the somewhat complex limitation point – which in the balancing referred to should yield an order for 50% of the plaintiff’s costs on the whole of the first defendant’s application.

1. Hence, the only orders that I will make, in addition to the orders for further directions, are: that the plaintiff pay the first defendant’s costs of and incidental to the plaintiff’s application insofar as the plaintiff has sought the amendments for which leave is granted, and of the first defendant amending its defence, including costs thrown away as a result of the necessity to make those amendments, to be assessed on the standard basis; and that just discussed on the limitation point.