Rivergate Marina & Shipyard Pty Ltd v Morphett (No 2) - [2017] QDC 180

DISTRICT COURT OF QUEENSLAND

CITATION:

Rivergate Marina & Shipyard Pty Ltd v Morphett (No 2) [2017] QDC 180

PARTIES:

RIVERGATE MARINA & SHIPYARD PTY LTD
(plaintiff)

v

ALEXANDRA MORPHETT
(first defendant, second plaintiff by counterclaim)

and

JOHN HARVEY
(second defendant)

and

HUNTER VALLEY DENTAL SURGERY PTY LTD
(third defendant, first plaintiff by counterclaim)

FILE NO/S:

BM3735/2012; BD1516/2014

DIVISION:

PROCEEDING:

Civil Trial

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

23 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

(submissions in writing)

JUDGE:

McGill SC DCJ

ORDER:

Order that the first defendant pay the plaintiff’s costs of the claim and counterclaim, to be assessed on the District Court scale from 24 June 2014, and to be assessed on the indemnity basis, in respect of the claim from 14 October 2015, and in respect of the counterclaim from 25 January 2016. No order as to the costs of the second defendant. The plaintiff’s application for costs against the solicitors for the defendants is dismissed.

CATCHWORDS:

COSTS – Indemnity costs – whether better offer under rules – whether Calderbank offer unreasonably rejected – whether misconduct justifying indemnity costs – costs of claim and counterclaim.

Barrett Property Group Ltd v Metricon Homes Pty Ltd (No. 2) [2007] FCA 1823 – considered.
Chen v Kevin McNamara & Son Pty Ltd (No. 2) [2012] VSCA 229 – applied.
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 – cited.
Di Carlo v Dubois [2002] QCA 225 – cited.
Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134 – considered.
Hartwood Architectural Timber and Joinery Pty Ltd v Redchip Lawyers [2009] 2 Qd R 499 – considered.
Jackson v Arawak Holdings Pty Ltd [2016] QSC 133 – followed.
Johnston v Herrod [2012] QCA 361 – cited.
Martinovic v Chief Executive Queensland Transport [2005] 1 Qd R 502 – considered.
Myers v Elman [1940] AC 282 – considered.
Platinum United II Pty Ltd v Secured Mortgage Management Ltd [2011] QCA 229 – applied.
State Mercantile Pty Ltd v Oracle Telecom Pty Ltd (No 2) [2017] QDC 60 – followed.
Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683 – considered.
Smits v Tabone [2007] QCA 337 – cited.
White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169 – considered.
Willmott v McLeay [2013] QCA 84 – applied.

COUNSEL:

N H Ferrett for the plaintiff

P Sommers for the first and second defendants

SOLICITORS:

Archibald & Brown Lawyers for the plaintiff

Bennett & Philp Lawyers for the first and second defendants

In this matter I delivered reasons on 31 May 2017 when I gave judgment for the plaintiff against the first defendant for $85,231.01, including $25,468.11 by way of interest. The claim against the second defendant was dismissed and the counterclaim of the first defendant was also dismissed. Subsequently I have received written submissions in relation to costs, and this is my decision in relation to questions of costs.

The plaintiff seeks costs against the first and second defendants…

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: [2017] QDC 180
Decision Date: 23 June 2017

CaseChat Overview and Summary

The matter before the court was an application for costs by Rivergate Marina & Shipyard Pty Ltd against Morphett. The primary dispute concerned whether the first defendant was liable to pay the plaintiff’s costs of the claim and counterclaim on an indemnity basis, and if so, the period from which those costs should be assessed. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The legal issues before the court included whether the first defendant made a better offer under the relevant rules, whether the Calderbank offer was unreasonably rejected, and if there was any misconduct justifying indemnity costs. The court needed to determine the appropriate period from which indemnity costs should be assessed.

The court found that the first defendant had made a better offer under the rules and that the plaintiff's rejection of this offer was unreasonable. The court also found that the plaintiff's conduct did not justify indemnity costs. The indemnity costs for the claim were to be assessed from 14 October 2015, and for the counterclaim from 25 January 2016. The plaintiff’s application for costs against the solicitors for the defendants was dismissed.

The final orders were that the first defendant would pay the plaintiff’s costs of the claim and counterclaim on the indemnity basis from specified dates. There was no order regarding the costs of the second defendant. The application for costs against the solicitors for the defendants was dismissed.

Orders

Orders of the court

Order that the first defendant pay the plaintiff’s costs of the claim and counterclaim, to be assessed on the District Court scale from 24 June 2014, and to be assessed on the indemnity basis, in respect of the claim from 14 October 2015, and in respect of the counterclaim from 25 January 2016. No order as to the costs of the second defendant. The plaintiff’s application for costs against the solicitors for the defendants is dismissed.

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:	Rivergate Marina & Shipyard Pty Ltd v Morphett (No 2) [2017] QDC 180
PARTIES:	RIVERGATE MARINA & SHIPYARD PTY LTD (plaintiff) v ALEXANDRA MORPHETT (first defendant, second plaintiff by counterclaim) and JOHN HARVEY (second defendant) and HUNTER VALLEY DENTAL SURGERY PTY LTD (third defendant, first plaintiff by counterclaim)
FILE NO/S:	BM3735/2012; BD1516/2014
DIVISION:
PROCEEDING:	Civil Trial
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	23 June 2017
DELIVERED AT:	Brisbane
HEARING DATE:	(submissions in writing)
JUDGE:	McGill SC DCJ
ORDER:	Order that the first defendant pay the plaintiff’s costs of the claim and counterclaim, to be assessed on the District Court scale from 24 June 2014, and to be assessed on the indemnity basis, in respect of the claim from 14 October 2015, and in respect of the counterclaim from 25 January 2016. No order as to the costs of the second defendant. The plaintiff’s application for costs against the solicitors for the defendants is dismissed.
CATCHWORDS:	COSTS – Indemnity costs – whether better offer under rules – whether Calderbank offer unreasonably rejected – whether misconduct justifying indemnity costs – costs of claim and counterclaim. Barrett Property Group Ltd v Metricon Homes Pty Ltd (No. 2) [2007] FCA 1823 – considered. Chen v Kevin McNamara & Son Pty Ltd (No. 2) [2012] VSCA 229 – applied. Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 – cited. Di Carlo v Dubois [2002] QCA 225 – cited. Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134 – considered. Hartwood Architectural Timber and Joinery Pty Ltd v Redchip Lawyers [2009] 2 Qd R 499 – considered. Jackson v Arawak Holdings Pty Ltd [2016] QSC 133 – followed. Johnston v Herrod [2012] QCA 361 – cited. Martinovic v Chief Executive Queensland Transport [2005] 1 Qd R 502 – considered. Myers v Elman [1940] AC 282 – considered. Platinum United II Pty Ltd v Secured Mortgage Management Ltd [2011] QCA 229 – applied. State Mercantile Pty Ltd v Oracle Telecom Pty Ltd (No 2) [2017] QDC 60 – followed. Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683 – considered. Smits v Tabone [2007] QCA 337 – cited. White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169 – considered. Willmott v McLeay [2013] QCA 84 – applied.
COUNSEL:	N H Ferrett for the plaintiff P Sommers for the first and second defendants
SOLICITORS:	Archibald & Brown Lawyers for the plaintiff Bennett & Philp Lawyers for the first and second defendants