Valleyfield P/L v Primac Ltd - [2003] QCA 398

SUPREME COURT OF QUEENSLAND

CITATION:

Valleyfield P/L v Primac Ltd & Anor [2003] QCA 398

PARTIES:

VALLEYFIELD PTY LTD ACN 051 841 279
AS TRUSTEE OF THE PARKER UNIT INVESTMENT TRUST
(plaintiff/respondent)
v
PRIMAC LIMITED ACN 010 023 284
(first defendant)
NETAFIM AUSTRALIA PTY LIMITED
ACN 056 229 755
(second defendant/appellant)

FILE NO/S:

Appeal No 3605 of 2002
SC No 344 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

Judgment delivered 8 August 2003
Further Orders delivered 12 September 2003

DELIVERED AT:

Brisbane

HEARING DATE:

24 February 2003; 25 February 2003; 26 February 2003

JUDGES:

Williams and Jerrard JJA and Mackenzie J
Judgment of the Court

FURTHER ORDERS:

1.   The orders made on 8 August 2003 stand as follows:

i)           Appeal allowed to the extent of varying the judgment at first instance by deleting the amount of $3,768,276.70 and inserting in lieu thereof $1,754,390.00

ii)        Appeal against the dismissal of the counterclaim dismissed

2.   The following further orders as to costs are made:

i)     Set aside the order of the trial judge that the second defendant pay to the plaintiff its costs of and incidental to the action assessed on an indemnity basis and in lieu thereof order that the second defendant pay to the plaintiff its costs of and incidental to the action assessed on a standard basis

ii)          Order that the respondent pay the appellant’s costs of and incidental to the appeal to be assessed on a standard basis

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASE – OTHER MATTERS – COSTS – where judgment given at trial more favourable than plaintiff’s offer to settle – where trial judge ordered second defendant to pay plaintiff’s costs on an indemnity basis – where plaintiff ordered to pay first defendant’s costs – where sum of damages reduced on appeal – where substituted judgment not more favourable than the plaintiff’s offer to settle – where submissions as to costs invited – where agreement that costs should only be on a standard basis – where second defendant submitted the defendants’ joint pre-trial offer was more favourable than the substituted judgment having regard to costs for which the plaintiff is liable – where quantum of costs not agreed or assessed – whether second defendant liable for plaintiff’s costs of the trial

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where second defendant made offer post-judgment and pre-appeal – where offer more favourable than judgment on appeal – whether plaintiff/respondent liable for second defendant/appellant’s costs of the appeal on an indemnity basis from the date of the offer

Uniform Civil Procedure Rules 1999 (Qld), r 353

Tector v FAI General Insurance Co Ltd [2001] 2 Qd R 46; [2000] QCA 426; Appeal No 7391 of 1999, 8 December 2000, considered

COUNSEL:

H B Fraser QC, with B…

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: [2003] QCA 398
Decision Date: 8 August 2003

CaseChat Overview and Summary

The appeal in Valleyfield P/L v Primac Ltd involves the plaintiff, Valleyfield P/L, and two defendants, Primac Ltd and another defendant. The dispute arose from a trial where the plaintiff sought damages and the trial judge awarded a sum more favourable than the plaintiff's offer to settle. The judge ordered the second defendant to pay the plaintiff's costs on an indemnity basis while the plaintiff was ordered to pay the first defendant's costs. On appeal, the damages awarded to the plaintiff were reduced, resulting in a substituted judgment that was not more favourable than the plaintiff's offer to settle. Submissions on costs were invited, leading to an agreement that costs should be on a standard basis. The second defendant submitted that the defendants' joint pre-trial offer was more favourable than the substituted judgment, considering the costs for which the plaintiff was liable. The quantum of costs was not agreed or assessed, leading to the question of whether the second defendant was liable for the plaintiff's costs of the trial.

The court was required to decide several legal issues, including whether the second defendant was liable for the plaintiff's costs of the trial. The court also had to determine whether the plaintiff was liable for the second defendant's costs of the appeal on an indemnity basis from the date of the second defendant's post-judgment and pre-appeal offer, which was more favourable than the judgment on appeal. The court considered the principles of costs in relation to offers to settle and the impact of those offers on the final costs order. The court had to balance the principle that a party should not be penalised for pursuing a claim in circumstances where an earlier offer to settle was more favourable with the principle that a party should not be penalised for accepting an offer that was less advantageous than a subsequent judgment.

The court found that the second defendant was not liable for the plaintiff's costs of the trial. It reasoned that the substituted judgment was not more favourable than the plaintiff's offer to settle, taking into account the costs for which the plaintiff was liable. The court held that the second defendant's post-judgment and pre-appeal offer was more favourable than the substituted judgment, considering the costs for which the plaintiff was liable. Consequently, the court held that the plaintiff was liable for the second defendant's costs of the appeal on an indemnity basis from the date of the second defendant's offer. The court's decision was based on the principles of offers to settle and the impact of those offers on the final costs order, ensuring that parties were not unduly penalised for pursuing or accepting offers to settle.

Orders