Pix v Suncoast Marine Pty Ltd - [2019] QSC 195

SUPREME COURT OF QUEENSLAND

CITATION:

Pix v Suncoast Marine Pty Ltd & Anor [2019] QSC 195

PARTIES:

TREVOR KEITH PIX
(plaintiff)
v
SUNCOAST MARINE PTY LTD
ABN 41 091 644 101
(first defendant)
MICHAEL JOHN RIDER
KATE RIDER
(second defendants)

FILE NO/S:

SC No 12976 of 2009

DIVISION:

Civil

PROCEEDING:

Trial

DELIVERED EX TEMPORE ON:

28 June 2019

DELIVERED AT:

Brisbane

HEARING DATE:

5 – 7 March 2018; 12 – 13 June 2018

JUDGE:

Holmes CJ

ORDER:

The second defendants are to pay the plaintiff’s costs of the action (subject to the existing order in relation to the costs of the March 2018 adjournment) on the standard basis up until 15 August 2017, and thereafter on the indemnity basis.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – PARTIAL SUCCESS – INDEMNITY COSTS – where the plaintiff proceeded against the first and second defendants in respect of the sale of a defective catamaran – where judgment was given against the second defendants for breach of a term implied by s 17 of the Sale of Goods Act 1896 (Qld) in the sale contract – where the plaintiff seeks a Sanderson order against the second defendants in respect of the successful first defendant’s costs – where the plaintiff seeks indemnity costs on the basis of offers to settle rejected by the second defendants – where the second defendants contend that the plaintiff should pay their costs until the date on which the statement of claim was amended to include the Sale of Goods Act claim – where the second defendants contend that the plaintiff’s costs should be limited to 50% to reflect his failure on some aspects of his claim -– where the second defendants contend that the plaintiff’s offers did not comply with r 360 of the Uniform Civil Procedure Rules and in any event another order is appropriate – whether it was reasonable and proper for the plaintiff to proceed against the first defendant, warranting the making of a Sanderson order – whether the plaintiff’s lack of success in relation to some issues and late addition of the Sale of Goods Act claim warrant an order different from the general rule that costs follow the event – whether the judgment was no less favourable than the offers – whether an order other than indemnity costs is appropriate

Sale of Goods Act 1896 (Qld), s 17
Uniform Civil Procedure Rules 1999 (Qld), r 360, r 362, r 363

Aircraft Technicians of Australia Pty Ltd v St Clair; St Clair v Timtalla Pty Ltd [2011] QCA 188, applied
Charter Pacific Corporation Limited v Belrida Enterprises Pty Ltd [2002] QSC 319; [2003] 2 Qd R 619, applied
Pix v Suncoast Marine Pty Ltd [2018] QSC 235, cited
Sanderson v Blyth Theatre Co [1903] 2 KB 533, considered

COUNSEL:

S R Grant for the plaintiff
A W Duffy QC for the first and second defendants

SOLICITORS:

Hall & Wilcox for the plaintiff
Thynne & Macartney for…

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: [2019] QSC 195
Decision Date: 28 June 2019

CaseChat Overview and Summary

The case of Pix v Suncoast Marine Pty Ltd involved the plaintiff, Pix, who had initiated proceedings against Suncoast Marine Pty Ltd and another defendant concerning the sale of a defective catamaran. The plaintiff sought damages for the defective nature of the catamaran and had initially proceeded against both defendants. Judgment was ultimately entered against the second defendant, Suncoast Marine Pty Ltd, for breach of a term implied by section 17 of the Sale of Goods Act 1896 (Qld) in the sale contract. The plaintiff sought a Sanderson order against Suncoast Marine Pty Ltd in respect of the successful first defendant's costs, as well as indemnity costs based on offers to settle that were rejected by Suncoast Marine. In response, Suncoast Marine contended that the plaintiff should bear their costs until the date the statement of claim was amended to include the Sale of Goods Act claim. They further argued that the plaintiff's costs should be limited to 50% due to partial failure on some aspects of the claim, and that the plaintiff's offers did not comply with rule 360 of the Uniform Civil Procedure Rules, hence an alternative order to indemnity costs was appropriate.

The court examined whether it was reasonable and proper for the plaintiff to proceed against Suncoast Marine, which would warrant the making of a Sanderson order. The court also assessed whether the plaintiff's partial failure on some issues and the late addition of the Sale of Goods Act claim warranted a deviation from the general rule that costs follow the event. Additionally, the court considered whether the judgment obtained by the plaintiff was no less favourable than the offers made by Suncoast Marine, and whether an order other than indemnity costs was appropriate. Ultimately, the court found in favour of the plaintiff and ordered that Suncoast Marine was to pay the plaintiff's costs of the action on the standard basis until 15 August 2017, and thereafter on the indemnity basis.

In summary, the court ruled that the plaintiff's decision to proceed against Suncoast Marine was justified, leading to the imposition of a Sanderson order. The court rejected the arguments that the plaintiff's partial failure on some issues and the late addition of the Sale of Goods Act claim should alter the usual rule of costs following the event. Furthermore, the court held that the judgment obtained by the plaintiff was no less favourable than the offers made by Suncoast Marine, and that the general rule of indemnity costs was appropriate in this case.

Orders

Orders of the court

The second defendants are to pay the plaintiff’s costs of the action (subject to the existing order in relation to the costs of the March 2018 adjournment) on the standard basis up until 15 August 2017, and thereafter 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:	Pix v Suncoast Marine Pty Ltd & Anor [2019] QSC 195
PARTIES:	TREVOR KEITH PIX (plaintiff) v SUNCOAST MARINE PTY LTD ABN 41 091 644 101 (first defendant) MICHAEL JOHN RIDER KATE RIDER (second defendants)
FILE NO/S:	SC No 12976 of 2009
DIVISION:	Civil
PROCEEDING:	Trial
DELIVERED EX TEMPORE ON:	28 June 2019
DELIVERED AT:	Brisbane
HEARING DATE:	5 – 7 March 2018; 12 – 13 June 2018
JUDGE:	Holmes CJ
ORDER:	The second defendants are to pay the plaintiff’s costs of the action (subject to the existing order in relation to the costs of the March 2018 adjournment) on the standard basis up until 15 August 2017, and thereafter on the indemnity basis.
CATCHWORDS:	PROCEDURE – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – PARTIAL SUCCESS – INDEMNITY COSTS – where the plaintiff proceeded against the first and second defendants in respect of the sale of a defective catamaran – where judgment was given against the second defendants for breach of a term implied by s 17 of the Sale of Goods Act 1896 (Qld) in the sale contract – where the plaintiff seeks a Sanderson order against the second defendants in respect of the successful first defendant’s costs – where the plaintiff seeks indemnity costs on the basis of offers to settle rejected by the second defendants – where the second defendants contend that the plaintiff should pay their costs until the date on which the statement of claim was amended to include the Sale of Goods Act claim – where the second defendants contend that the plaintiff’s costs should be limited to 50% to reflect his failure on some aspects of his claim -– where the second defendants contend that the plaintiff’s offers did not comply with r 360 of the Uniform Civil Procedure Rules and in any event another order is appropriate – whether it was reasonable and proper for the plaintiff to proceed against the first defendant, warranting the making of a Sanderson order – whether the plaintiff’s lack of success in relation to some issues and late addition of the Sale of Goods Act claim warrant an order different from the general rule that costs follow the event – whether the judgment was no less favourable than the offers – whether an order other than indemnity costs is appropriate Sale of Goods Act 1896 (Qld), s 17 Uniform Civil Procedure Rules 1999 (Qld), r 360, r 362, r 363 Aircraft Technicians of Australia Pty Ltd v St Clair; St Clair v Timtalla Pty Ltd [2011] QCA 188, applied Charter Pacific Corporation Limited v Belrida Enterprises Pty Ltd [2002] QSC 319; [2003] 2 Qd R 619, applied Pix v Suncoast Marine Pty Ltd [2018] QSC 235, cited Sanderson v Blyth Theatre Co [1903] 2 KB 533, considered
COUNSEL:	S R Grant for the plaintiff A W Duffy QC for the first and second defendants
SOLICITORS:	Hall & Wilcox for the plaintiff Thynne & Macartney for…