Walz Construction Company Pty Ltd v Suncorp Insurance and Finance
[2001] QSC 63
•3 May 2001
SUPREME COURT OF QUEENSLAND
| CITATION: | Walz Construction Company Pty Ltd v Suncorp Insurance and Finance and others [2001] QSC 063 |
| PARTIES: | WALZ CONSTRUCTION COMPANY PTY LTD QUEENSLAND ALUMINA LIMITED WALZ CONSTRUCTION COMPANY PTY LTD |
| FILE NO/S: | 124 of 1995 and 120 of 1995 |
| DIVISION: | Trial Division |
| DELIVERED ON: | 3 May 2001 |
| DELIVERED AT: | Rockhampton |
| HEARING DATE: | 20 March 2001 in Brisbane |
| JUDGE: | Dutney J |
| ORDERS: | 1. The judgment given in favour of the plaintiff against the third defendant on 8 March 2001 be varied by increasing the amount to $270,313.60. 2. The plaintiff will pay the costs of the defendant in S120 of 1995 and the third party in S124 of 1995 to be assessed on the standard basis. 3. The third defendant will pay the plaintiff’s costs of the action excluding any costs referable only to S120 of 1995to be assessed on the standard basis. 4. The plaintiff and the third defendant will pay the costs of the action of the first defendant and plaintiff by counterclaim to be assessed on the standard basis up to and including 23 March 2000 and thereafter on an indemnity basis. 5. The plaintiff and the third defendant will pay the second defendants costs of the action to be assessed on the standard basis. 6. As between themselves the plaintiff and the third defendant will pay the costs ordered to be paid to the first and second defendants in the respective proportion of 15% by the plaintiff and 85% by the third defendant. 7. I give the plaintiff and the third defendant leave to appeal on the question of costs. |
| CATCHWORDS: | JUDGMENTS & ORDERS – FACTS DISCOVERED AFTER JUDGMENT – SLIP RULE – claim not considered in original judgment because of erroneous belief that it has been abandoned – power to vary judgment. Marshall v Dunkley (Full Ct (Q) – W20 of 1983 – 2.11.84 – unreported), considered |
| COUNSEL: | Mr Douglas QC with him Mr DcDougall for the plaintiff/first defendant by counter claim Mr Griffin QC for the third party/defendant |
| SOLICITORS: | Lyons O’Shea for the plaintiff/first defendant by counter claim Heiser Bayly Mortenson for the third party/defendant |
Dutney J: Judgment was given in this action on 8 March 2001. The question of costs was held over for subsequent argument. That took place on 20 March 2001. I reserved finalisation of that matter until I returned from circuit in Brisbane.
During the course of his submissions on costs Mr Douglas QC pointed out that in paragraph [53] of my judgment I have erroneously stated that a claim by the plaintiff for loss of use of its crane during the period of repair and the costs of the plaintiff’s labour had been abandoned. Upon checking the written submissions supplied by Mr Douglas QC at the conclusion of the evidence I have ascertained that the former claim was not in fact abandoned. The claim relating to the cost of the plaintiff’s own labourers in effecting the repairs was not abandoned in the written submissions but I will deal with it later. In relation to loss of use the plaintiff in fact claimed 70% of $6,000-$7,000 for 31 weeks making a total of $130,000-$150,000.
Judgment having been given it seems to me that the only way the matter can now be dealt with is if rule 668 or rule 388 of the UCPR applies. The former rule enables an order to be varied if facts are discovered after the order is made which would, if discovered in time, have entitled a party to a different order. The power has been described as a wide one: see Marshall v Dunkley (Full Ct (Q) – W20 of 1983 – 2.11.84 – unreported).
Whether or not a claim has been abandoned in the sense that a party no longer wishes to pursue it is a question of fact. It thus seems to me that having discovered after judgment that the plaintiff is still seeking recovery for loss of use, a claim with which, through a factual error, I have failed to deal I am entitled to now consider that issue and, if appropriate, vary the order already made.
An alternative power is given by rule 388 which relates to accidental slips or omissions. The so called “slip rule” is available to correct or vary an order where the subject matter of the variation was in issue in the proceedings and the need for the variation arises from an accidental error or omission: see Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 452-454 per McHugh JA. There is no doubt the particular heads of claim were in issue and have not been dealt with, at least in the case of the loss of use by reason of an accidental error in failing to appreciate that the claims were still being pursued.
Each of the parties dealt with the loss of use claim in their written submissions although Mr Hastie for the third defendant, the only party in relation to whom it is still a live issue dealt with it briefly in paragraph 21 of his submissions by indicating only that it was in dispute. Despite this, it has been thoroughly canvassed in writing by the defendants collectively who in this respect had a common interest. I do not think it is necessary to delay matters further by inviting more submissions. If I am wrong about this or my power to now deal with it that can be corrected in the appeal which the plaintiff has already lodged.
The evidence in support of the claim is scanty. It includes exhibit 30 which is a schedule of income earned from the hire of the crane in the 12 months preceding the accident. It includes the bald assertion by Mr Walz that the profit component of the hire charge was 70%. This high figure was justified by the fact that this crane was the only one of its size in the Gladstone region and thus had a captive market. It assumes that no other similar crane would be brought to the region during the 31 week repair period although hindsight shows that shortly after the plaintiff’s crane was damaged both Brambles and another operator brought similar sized cranes to the area. The third defendant was a division of Brambles and the likelihood is that if a suitable Brambles crane was in the area the third defendant would have used it. Of $292,314.25 earned from hire of the crane in the 12 months preceding the accident, $176,156.25 came from the first or second defendants. It is speculation whether Brambles would have established a large crane at Gladstone if the plaintiff’s had not been damaged. By the time the plaintiff’s crane was repaired its hire market had gone and the plaintiff principally used the crane for its own purposes (T380.15).
There is no evidence how often the type of maintenance work the crane was being used for at the time of the accident was done on the QAL ships. I would not assume without evidence that it was done annually. Since a substantial portion of the hire fees in the preceding year had come from this source I would not assume that exhibit 30 represents a typical year.
The percentage profit also seems dubious. It was given by Mr Walz in re-examination but in circumstances where Mr Walz was unable to provide any other detail to support that percentage.
In the result the evidence in support of this claim is most unsatisfactory. The best I can do on the evidence is to accept that there has been some loss of use as a result of the cranes unavailability. I am not persuaded it is as extensive as has been claimed or even close to that figure. Nonetheless, once I am satisfied that the plaintiff has suffered some loss by being deprived of the opportunity to hire out the crane I must award an amount of damages doing the best I can to value that opportunity: see Sellers v. Adelaide Petroleum NL (1992-1993) 179 CLR 332 at 354-355.
Doing the best I can on the limited material available I assess the plaintiff’s loss at $60,000. This is roughly half of the gross fees from hiring the crane to persons other than ASP Ship Management or Q.A.L. in the preceding year and is arbitrary and probably conservative. It does reflect a component of delay in repairing the crane which should not be charged to the third defendant. If I allow the plaintiff 85% of this sum consistently with the findings of liability and add interest at 8% for 5.7 years the total is $74,256 which should be added to the sum already awarded increasing the total net judgment of the plaintiff against the third defendant to $270,313.60. I vary the original judgment accordingly.
As to the labour cost I have a recollection of Mr Douglas QC saying in the course of Mr Hastie’s submissions that it would not be pursued. In any event no submission in support of it either oral or in writing was advanced by the plaintiff which in its written submissions acknowledged the difficulty of establishing any such claim on the evidence. In my view it is not sustainable in any event. The labour was performed by the plaintiff’s own workers. There is no evidence that any of the time spent on repairs by those workers has resulted in a real cost to the plaintiff. They were entitled to wages whether effecting repairs or not. There is no evidence that as a result of effecting repairs to the crane other work was deferred or neglected or any additional worker employed. The rate claimed is a charge out rate to third parties and not the cost to the plaintiff. At its highest there is evidence that some overtime was worked but in general the repairs were carried out in regular hours. I am not satisfied that the plaintiff has proved any loss under this head.
In relation to costs it seems to me that Suncorp Metway is entitled to its costs of successfully defending the action and third party proceedings to which it was a party.
The successful first and second defendants should have their costs. The first defendant seeks indemnity costs on the basis of formal offers made which it has bettered if costs follow the event as I have indicated they should. Under the rules, however, that it not the ordinary effect of a defendant’s offer. The first defendant was, however a plaintiff by counterclaim. It’s offer included the counterclaim. It has done better than the offer on the counterclaim made on 24 March 2000.
Apart from those issues dealt with in these reasons all issues of quantum were agreed. S124 of 1995 was thus fought almost entirely on liability. The result of this is that there is almost a complete overlap between the live issues in the claim, counterclaim and notices of contribution of the various parties. I therefore propose to deal with each party’s costs on the basis of the net result. The third defendant had a counterclaim and contribution proceeding of its own against the successful defendants.
On the basis I propose to deal with costs I am satisfied that the first defendant should have its costs on the standard basis up to 23 March 2000 and thereafter on an indemnity basis reflecting its net status as a successful plaintiff by counterclaim. The costs of the first and second defendants should be awarded against the plaintiff and the third defendant. As between themselves the plaintiff and the third defendant should bear those costs in the proportion of 15% by the plaintiff and 85% by the third defendant.
The action against Suncorp Metway and the third party proceedings against Suncorp Metway required a determination of the same issue which occupied the bulk of the trial time, namely, the cause of the accident. The balance of the issues in those proceedings involved only submissions. Mr Griffith QC for Suncorp Metway played little active role in the trial until the evidence concluded. The presence of Suncorp Metway did not extend the length of the trial. These facts alone do not, however, justify an order that the unsuccessful defendant indemnify the plaintiff for those costs. In any event the third defendant was not a party to S120 of 1995.
I consider that the costs the plaintiff has to pay to Suncorp Metway are in a different category to those of the successful defendants. I can see nothing which the third defendant has done which contributed to either the inclusion or continuance of the proceedings between the plaintiff and Suncorp Metway: Gould v. Vaggelas (1983-1985) 157 CLR 215 at 229-230.
The orders will be:
1. The judgment given in favour of the plaintiff against the third defendant on 8 March 2001 be varied by increasing the amount to $270,313.60.
2. The plaintiff will pay the costs of the defendant in S120 of 1995 and the third party in S124 of 1995 to be assessed on the standard basis.
3. The third defendant will pay the plaintiff’s costs of the action excluding any costs referable only to S120 of 1995to be assessed on the standard basis.
4. The plaintiff and the third defendant will pay the costs of the action of the first defendant and plaintiff by counterclaim to be assessed on the standard basis up to and including 23 March 2000 and thereafter on an indemnity basis.
5. The plaintiff and the third defendant will pay the second defendants costs of the action to be assessed on the standard basis.
6. As between themselves the plaintiff and the third defendant will pay the costs ordered to be paid to the first and second defendants in the respective proportion of 15% by the plaintiff and 85% by the third defendant.
7. I give the plaintiff and the third defendant leave to appeal on the question of costs.
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