Suncorp Metway Insurance Ltd v. Blat

[2007] QDC 24

DISTRICT COURT OF QUEENSLAND

CITATION:

Suncorp Metway Insurance Ltd v Blat [2007] QDC 024

PARTIES:

D2755/04

SUNCORP METWAY INSURANCE LIMITED
(ABN: 83 075 695 966)
Plaintiff

v

AARON BLAT (trading as ENVIROSPRAY)
Defendant

M5941/04

AARON BLAT (trading as ENVIROSPRAY)
Plaintiff

v

SUNCORP METWAY INSURANCE LIMITED
(ABN: 83 075 695 966)
Defendant

DIVISION:

Civil

PROCEEDING:

Decision on Costs

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

5 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

Submissions received in writing

JUDGE:

Ryrie DCJ

ORDER:

1.       In respect of the Magistrates Court claim (M5941/04), it is ordered that Aaron Blat (trading as Environspray) pay to Suncorp Metway Insurance Limited its costs to be assessed on a standard basis and on the Magistrates Court scale until the date of its’ transfer to the District Court, namely 3^rd November 2005.

2.       In respect of the District Court claim (D2755/04), it is ordered that Suncorp Metway Insurance Limited pay to Aaron Blat (trading as Environspray) his costs to be assessed on a standard basis and on the District Court scale.

3.       In respect of the District Court counter-claim (D2755/04), it is ordered that Aaron Blat (trading as Environspray) pay to Suncorp Metway Insurance Limited its costs incurred after 3^rd November 2005 to be assessed on a standard basis and on the District Court scale.

CATCHWORDS:

COSTS

Uniform Civil Procedure Rules 1999, r 378, r 689

COUNSEL:

Mr W Campbell for Suncorp Metway Insurance Limited

Mr D Kent for Mr Blat

SOLICITORS:

HBM Lawyers for Suncorp Metway Insurance Limited

Cranston McEachern for Mr Blat

Background

1. On the 10^th June 2004, Aaron Blat trading as Envirospray (‘Mr Blat’) sought relief in the Magistrates Court Brisbane for breach of contract for the sum of $40,000 (plus interest) (M5941/2004). As a result of that claim being filed, Suncorp Metway Insurance Limited (‘Suncorp’) entered a notice of intention to defend, Defence and Set-Off (for the sum of $159,000) on 13^th July 2004.That pleading was subsequently amended by Suncorp pursuant to rule 378 of the Uniform Civil Procedure Rules 1999 (UCPR) on two occasions which were then filed on 25^th May 2005 and 2^nd June 2005 respectively.

1. Prior to those pleadings being amended however, Suncorp had by notice of claim filed in the District Court Brisbane on the 3^rd August 2004, sought relief for breach of contract and/or damages for deceit for the sum of $159,000 (plus interest) (D2755/04). As a result of that claim being filed, Mr Blat entered a notice of intention to defend, defence and counterclaim (for the sum of $40,000). That pleading was subsequently amended several times.

1. On the 3^rd November 2005, by consent, it was ordered that the Magistrates Court proceedings be transferred to the District Court in order that both matters be heard together. The matters then proceeded to hearing over the course of 5 consecutive days, 27^th November to 1^st December 2006 inclusive. Judgment was subsequently handed down on the 11^th January 2007. The order of the court was that both Suncorp’s claim and Mr Blat’s claim be dismissed.

1. The parties were invited to make submissions on costs in writing within 28 days, failing agreement. Submissions were then received by both parties on that question for consideration. The respective submissions have each been marked as an exhibit for the purpose of this decision.

The parties’ respective arguments

1. Essentially, Suncorp submits that there is no reason why there should be any departure from the general rule ‘that costs on the standard basis should follow the event’ (UCPR r.689). As such, it is submitted that the orders sought in paragraph 5 as set out in its’ outline of submissions should be made.

1. Mr Blat, on the other hand, submits that any costs order made should not be divided up in the way submitted in paragraph 5 of Suncorp’s outline of submissions. Mr Blat argues that the ‘event’ which was the major issue of contention between the parties was Suncorp’s attempt to recover its money which had been paid to Mr Blat, (which was wholly unsuccessful), any costs order made by this Court should therefore see Mr Blat as wholly successful in respect of any order as to costs. That submission however overlooks the fact that Mr Blat had commenced a claim, initially in the Magistrates Court (subsequently transferred to the District Court) which he then pursued at trial unsuccessfully, after calling evidence at hearing in support of that claim.

1. While it is true that there is some force in the submission made on behalf of Mr Blat that the claims identified in paragraphs 5(a) and (c) of Suncorp’s outline of submissions might be viewed as being ‘one of the same’, that would not in itself, in my view, prevent an order as to costs being made in respect of each of the matters that were before the court for determination.

1. Having determined then that the appropriate course in this case is that an order ought to be made in accordance with r.689 of the UCPR in respect of all the matters before the court, it follows that the orders which should be made in this case ought be in line to that proposed by Suncorp in paragraph 5 (a), (b) and (c), with some variation.

1. The following factors have been relevant in assisting me to arrive to that conclusion and also in the determination of what costs orders, if any, should be made in all the circumstances of this case:

·     The fact that costs were incurred by Suncorp in the Magistrates Court proceedings (M5941/04) prior to its’ transfer to the District Court for hearing.

·     The fact that Suncorp was required to institute a claim in the District Court (the appropriate jurisdiction) in respect of any set-off which it had asserted in respect of those Magistrates Court proceedings.

·     The fact that Mr Blat was unsuccessful, not only in respect of the Magistrates Court proceedings, but also in respect of his District Court counterclaim (which, I accept, was a ‘mirror’ of the earlier Magistrates Court claim which he had made) before the District Court.

·     The fact that it is accepted that the costs which were incurred by Suncorp in defending the Magistrates Court proceedings prior to its transfer to the District Court, can only be best described as minimal. The pleadings already referred to under the heading Background reflects this point.

·     The fact that the costs which have been incurred by Suncorp in defending Mr Blat’s counter claim (which is essence was also Mr Blat’s Magistrates Court claim) before the District Court might also be described as minimal  given the fact that over the course of 4 days of full evidence, only a small part of that time was attributable to the question of Mr Blat’s claim (and counterclaim) for $40,000. The transcript of the proceedings reflect this point in that it reveals that only a small portion of court time as it related to evidence given during days 1 and 2 was directed to this issue. However, even though it is accepted that any costs actually incurred by Suncorp attributable in its’ defence of Mr Blat’s claim (and counter-claim) before the District Court may have been ‘minimal’ in the overall scheme of things, it does not follow that Mr Blat should be wholly successful in respect of any costs orders which this court may make. The fact remains that Suncorp was required to defend those claims before the District Court, and did so successfully. As such, Suncorp is entitled to its costs.

1. Accordingly, I see no reason why the following orders should not be made:

1.   In respect of the Magistrates Court claim (M5941/04), it is ordered that Aaron Blat (trading as Environspray) pay to Suncorp Metway Insurance Limited its costs to be assessed on a standard basis and on the Magistrates Court scale until the date of its’ transfer to the District Court, namely 3^rd November 2005.

2.   In respect of the District Court claim (D2755/04), it is ordered that Suncorp Metway Insurance Limited pay to Aaron Blat (trading as Environspray) his costs to be assessed on a standard basis and on the District Court scale.

3.   In respect of the District Court counter-claim (D2755/04), it is ordered that Aaron Blat (trading as Environspray) pay to Suncorp Metway Insurance Limited its costs incurred after 3^rd November 2005 to be assessed on a standard basis and on the District Court scale.