Rare Nominees Pty Ltd v E-Coastal Developments Pty Ltd (No 2) - [2017] QDC 250

DISTRICT COURT OF QUEENSLAND

CITATION:

Rare Nominees Pty Ltd v E-Coastal Developments Pty Ltd & Ors (No 2) [2017] QDC 250

PARTIES:

RARE NOMINEES PTY LTD (ACN 094 976 833), AS TRUSTEE FOR THE MACKELLAR FAMILY SUPERANNUATION FUND
(plaintiff)
v
E-COASTAL DEVELOPMENTS PTY LTD (IN LIQUIDATION) (ACN 105 138 056)
(formerly, first defendant)
and
CHRISTOPHER JOHN EATON
(second defendant)
and
MODERN CITY HOLDINGS PTY LTD (ACN 122 023 803)
(third defendant)
and
BELINDA JANE EATON

(fourth defendant)

FILE NO/S:

D4799/15

DIVISION:

Civil

PROCEEDING:

Costs

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

5 October 2017

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Dorney QC DCJ

ORDERS:

1.   The plaintiff is given leave to file, and read, the affidavit of Malcolm Robinson, affirmed 29 September 2017.

2.   The second defendant is to pay the plaintiff’s costs of the proceeding against him.

3.   The plaintiff is to pay the fourth defendant’s costs of the proceeding against her.

4.   The plaintiff is to pay the third defendant’s costs of the proceeding against it up to and including 6 November 2015.

CATCHWORDS:

COSTS – Calderbank offer and UCPR offers – whether joint offer ineffective when one offeree succeeds in defending proceeding – whether “compromise” in offer made

LEGISLATION:

District Court of Queensland Act 1967, s52(1)(b)
Uniform Civil Procedure Rules 1999, rr 356, 360, 360(1), 360(1)(a), 360(2), 363, 363(1), 363(2), 681, 681(1), 681(2), 684, 684(2), 687(2)(a), 698, 702, Ch 17A

CASES CITED:

Bulsey & Anor v State of Queensland [2016] QCA 158
Cachia v Hanes (1994) 179 CLR 403
Calderbank v Calderbank [1975] All ER 333
Cardrona Property Pty Ltd & Ors v Cars.com.au Pty Ltd & Ors (No 2) [2016] QDC 137
Chiropractic Board of Australia v Jamieson [2013] QSC 77
Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd [2016] QCA 130
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322
Hadgelias Holdings Pty Ltd v Seirlis & Ors [2014] QCA 325
Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] 13 VR 435
Jones v Bradley (No 2) [2003] NSWCA 258
Jones v Millward [2005] 1 Qd R 498
Merrin v Commissioner of Police [2012] QCA 181
Messiter v Hutchinson (1987) 10 NSWLR 525
Murphy Farming Pty Ltd as Trustee for the Murphy Farming Trust v Gralike & Ors (No 2) [2016] QDC 155
Rintoul v State of Queensland & Ors [2015] QCA 79
Rivergate Marina & Shipyard Pty Ltd v Morphett (No 2) [2017] QDC 180
Roberts v Prendergast [2013] QCA 89
Rolls v Radford [2012] QSC 170
Smith & Ors v Wessling-Smith & Ors [2017] QSC 189
State Mercantile Pty Ltd v Oracle Telecom Pty Ltd (No 2) [2017] QDC 60
Stewart v Atco Controls Pty Ltd (No 2) (2014) 252 CLR 331

COUNSEL:

B A Hall for the plaintiff

C J Eaton personally for the 2nd and 4th defendants and by leave for the 3rd defendant

SOLICITORS:

Robinson Locke Litigation Lawyers for the plaintiff

Introduction

On 26 September 2017, I made orders…

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.

Keep reading for free

Create a free CaseChat account to read Rare Nominees Pty Ltd v E-Coastal Developments Pty Ltd (No 2... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] QDC 250
Decision Date: 5 October 2017

CaseChat Overview and Summary

Rare Nominees Pty Ltd sought damages against E-Coastal Developments Pty Ltd and other defendants for alleged breaches of contract. The case came before the court to determine issues relating to costs. The court had to decide if a joint Calderbank offer was ineffective because one of the defendants succeeded in defending the proceeding, and whether the offer constituted a compromise. The court examined the terms of the offer and the context in which it was made. The court found that the joint offer did not constitute a compromise and was valid, but the defendant's success in defending the proceeding meant that the plaintiff was entitled to costs from that defendant. The court also found that the plaintiff was entitled to costs against another defendant, but not against a third defendant for proceedings up to a certain date. The court ordered that the plaintiff be allowed to file and read an affidavit, and that the defendants pay certain costs to the plaintiff and the plaintiff pay certain costs to the defendants.

Orders

Orders of the court

1. The plaintiff is given leave to file, and read, the affidavit of Malcolm Robinson, affirmed 29 September 2017.

2. The second defendant is to pay the plaintiff’s costs of the proceeding against him.

3. The plaintiff is to pay the fourth defendant’s costs of the proceeding against her.

4. The plaintiff is to pay the third defendant’s costs of the proceeding against it up to and including 6 November 2015.

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:	Rare Nominees Pty Ltd v E-Coastal Developments Pty Ltd & Ors (No 2) [2017] QDC 250
PARTIES:	RARE NOMINEES PTY LTD (ACN 094 976 833), AS TRUSTEE FOR THE MACKELLAR FAMILY SUPERANNUATION FUND (plaintiff) v E-COASTAL DEVELOPMENTS PTY LTD (IN LIQUIDATION) (ACN 105 138 056) (formerly, first defendant) and CHRISTOPHER JOHN EATON (second defendant) and MODERN CITY HOLDINGS PTY LTD (ACN 122 023 803) (third defendant) and BELINDA JANE EATON (fourth defendant)
FILE NO/S:	D4799/15
DIVISION:	Civil
PROCEEDING:	Costs
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	5 October 2017
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Dorney QC DCJ
ORDERS:	1. The plaintiff is given leave to file, and read, the affidavit of Malcolm Robinson, affirmed 29 September 2017. 2. The second defendant is to pay the plaintiff’s costs of the proceeding against him. 3. The plaintiff is to pay the fourth defendant’s costs of the proceeding against her. 4. The plaintiff is to pay the third defendant’s costs of the proceeding against it up to and including 6 November 2015.
CATCHWORDS:	COSTS – Calderbank offer and UCPR offers – whether joint offer ineffective when one offeree succeeds in defending proceeding – whether “compromise” in offer made
LEGISLATION:	District Court of Queensland Act 1967, s52(1)(b) Uniform Civil Procedure Rules 1999, rr 356, 360, 360(1), 360(1)(a), 360(2), 363, 363(1), 363(2), 681, 681(1), 681(2), 684, 684(2), 687(2)(a), 698, 702, Ch 17A
CASES CITED:	Bulsey & Anor v State of Queensland [2016] QCA 158 Cachia v Hanes (1994) 179 CLR 403 Calderbank v Calderbank [1975] All ER 333 Cardrona Property Pty Ltd & Ors v Cars.com.au Pty Ltd & Ors (No 2) [2016] QDC 137 Chiropractic Board of Australia v Jamieson [2013] QSC 77 Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd [2016] QCA 130 Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 Hadgelias Holdings Pty Ltd v Seirlis & Ors [2014] QCA 325 Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] 13 VR 435 Jones v Bradley (No 2) [2003] NSWCA 258 Jones v Millward [2005] 1 Qd R 498 Merrin v Commissioner of Police [2012] QCA 181 Messiter v Hutchinson (1987) 10 NSWLR 525 Murphy Farming Pty Ltd as Trustee for the Murphy Farming Trust v Gralike & Ors (No 2) [2016] QDC 155 Rintoul v State of Queensland & Ors [2015] QCA 79 Rivergate Marina & Shipyard Pty Ltd v Morphett (No 2) [2017] QDC 180 Roberts v Prendergast [2013] QCA 89 Rolls v Radford [2012] QSC 170 Smith & Ors v Wessling-Smith & Ors [2017] QSC 189 State Mercantile Pty Ltd v Oracle Telecom Pty Ltd (No 2) [2017] QDC 60 Stewart v Atco Controls Pty Ltd (No 2) (2014) 252 CLR 331
COUNSEL:	B A Hall for the plaintiff C J Eaton personally for the 2nd and 4th defendants and by leave for the 3rd defendant
SOLICITORS:	Robinson Locke Litigation Lawyers for the plaintiff