Quilkey v Tractile Combined Pty Ltd (No 3)

[2023] QDC 224

DISTRICT COURT OF QUEENSLAND

CITATION: 

Quilkey & another v Tractile Combined Pty Ltd & others (No 3) [2023] QDC 224

PARTIES: 

STEVEN ROBERT QUILKEY AND YUKIKO NOZAKI
(Plaintiffs)

v

TRACTILE COMBINED PTY LTD ACN 627 772 212
(First Defendant)

v

TRACTILE PTY LTD ACN 142 809 381
(Second Defendant)

v

JASON DEAN PERKINS
(Third Defendant)

v

TRAC GROUP HOLDINGS PTY LTD ACN 115 007 540
(Fourth Defendant)

FILE NO:

BD No. 794/21

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT: 

Brisbane District Court

DELIVERED ON:

30 November 2023

DELIVERED AT:

Brisbane

HEARING DATES: 

13, 14, 15, 16, 17 and 27 February 2023

JUDGE:

Porter KC DCJ

ORDERS:

1.   Judgment is given for the plaintiffs in their restitutionary claim against the first and second defendants for $219,106.18; and

2.   Judgment is given for the plaintiffs in their damages claims against the first, second and fourth defendants for $219,374.14; and

3.   The plaintiff’s claims against the third defendant be dismissed; and

4.   The first, second and fourth defendants pay the plaintiffs’ costs of the proceedings on the standard basis; and

5.   The plaintiffs pay the third defendant’s costs of the proceedings on the standard basis; and

6.   The first defendant’s counterclaim be dismissed; and

7.   The first defendant pay the plaintiffs’ costs of the counterclaim on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS BEFORE STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – GENERALLY – where the plaintiffs were largely successful on their claims at trial – whether costs should follow the event

COUNSEL:

P Travis for the Plaintiffs

S Hogg for the Defendants

SOLICITORS:

Aitken Whyte Lawyers for the Plaintiffs

Celtic Legal for the Defendants

1. I delivered judgment in these proceedings on 21 November 2023.[1]  This decision should be read with that judgment, and I will adopt the same terms as used there.  Following delivery of my reasons, I allowed the parties time to consider their positions as to costs and as to the form of orders.  Both parties have now filed submissions as to costs and interest, and little remains in dispute.

   [1] Quilkey v Tractile Combined Pty Ltd [2023] QDC 204.

Costs

1. The parties are agreed that the plaintiffs should have their costs of the proceedings on the standard basis as against the first, second and fourth defendants.  The parties are also agreed that the third defendant, having been successful at trial, should have his costs of the proceeding as against the plaintiffs.  There are only two matters raised by the defendants that remain to be dealt with.

2. First, the defendants submit that TRAC Group should only be required to pay 85% of the plaintiffs’ costs “because the plaintiffs’ claim for restitution was not against the fourth defendant.”  It is correct that TRAC Group was not a defendant to the restitutionary claim under the Tractile contract.  However, I do not accept that that is a basis for the different costs order contended for by TRAC Group.  No real defence was raised against the proposition that the plaintiffs were entitled to restitution of monies paid under the Tractile Contract (as indicated at [140] of the principal judgment).  The only issue that arose was whether Tractile P/L was a party to the Tractile contract, such that it was liable in restitution.  That question played a very minor role during the trial and in the parties’ submissions. The rest of the issues in the trial were in substance the same as between TRAC Group on the one hand and Tractile P/L and Tractile Combined on the other. 

3. Second, the defendants submit that Mr Perkins’ costs should be paid by the plaintiffs on the indemnity basis because the case advanced against Mr Perkins was doomed to fail.  The only cause of action brought against Mr Perkins was for breach of statutory duty, and at [256] – [273] of the principal judgment I found that no breach of statutory duty case properly arose on the pleading.  Regardless, I am not minded to order costs on an indemnity basis, given the way the matter was dealt with at trial. 

4. There is no evidence before me that the pleading issue identified in the principal judgment was ever raised by the defendants.  In fact, the defendants’ closing submissions on the breach of statutory duty point were made without reference to the form of pleading.  Nor is it correct that the case against Mr Perkins was hopeless or untenable.  In those circumstances, this is not an appropriate case for an award of indemnity costs.

Interest

1. The defendants do not dispute the plaintiffs’ interest calculations.  Considering the interest calculations:

   (a)The sum due in respect of the restitutionary claim is $177,645 plus interest of $41,461.18, giving a total of $219,106.18 

   (b)The sum due in respect of the damages claim is $203,274.88 plus interest of $4,588.36 (on the loss of use damages), $1,287.49 (on the ‘restricted’ use damages) and $10,223.41 on the rectification damages, giving a total of $219,374.14.

Final orders

1. Taking into account the above matters, I vary the orders made on 21 November 2023 and make further orders, so that the final orders in the proceedings are as follows:

   (a)Judgment is given for the plaintiffs in their restitutionary claim against the first and second defendants for $219,106.18; and

   (b)Judgment is given for the plaintiffs in their damages claims against the first, second and fourth defendants for $219,374.14; and

   (c)The plaintiff’s claims against the third defendant be dismissed; and

   (d)The first, second and fourth defendants pay the plaintiffs’ costs of the proceedings on the standard basis; and

   (e)The plaintiffs pay the third defendant’s costs of the proceedings on the standard basis; and

   (f)The first defendant’s counterclaim be dismissed; and

   (g)The first defendant pay the plaintiffs’ costs of the counterclaim on the standard basis.