Zaini v Drum & Drum

[1997] QCA 493

[1997] QCA 493

COURT OF APPEAL

PINCUS JA DOWSETT J HELMAN J

Appeal No 8449 of 1996

EMMA ZAINI	Appellant (Plaintiff)
and
MICHAEL HUGH DRUM	Respondents
and BARBARA MARY DRUM	(Second Defendants)
BRISBANE ..DATE 03/12/97

JUDGMENT appellant in relation to costs. The appellant sued a Mr Gambaro as first defendant and the respondents to this appeal as second defendants for damages for personal injuries, by an action brought in the District Court. As between the appellant and the respondents, that action was settled by an agreement providing that the respondents pay the appellant a certain sum in satisfaction of her claim and also some costs. The clause relating to costs reads as follows:

031297 D.1 T2/RW16 COA282/97
PINCUS JA: This is an appeal from a judgment of

"the second defendant pay the plaintiff's costs of and incidental to the action (including reserved costs if any) on the District Court scale applicable to a sum recovered of less than $50,000."

Mr Gambaro was not a party to the compromise and it made no mention of the claim against him or of the costs of that claim. On 5 March 1996, by an order of Judge Morley QC,

Mr Gambaro's costs became payable by the plaintiff. The next move was that the plaintiff applied for a declaration that the

plaintiff's costs of and incidental to the action include the costs the plaintiff is liable to pay to the first defendant in the application. That application was based on the terms of the compromise. Judge Healy QC dismissed the application, holding that the agreement related only to the action as between the appellant and the respondents and that it did not deal with the question of Mr Gambaro's costs.

Now the respondents have submitted, among other things, that

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031297 D.1 T2/RW16 COA282/97 plaintiff's costs of and incidental to the action" in the clause in the agreement between the plaintiff and the respondents includes any costs the appellant might thereafter be ordered to pay to another party in relation to the action, and in particular, Mr Gambaro's costs. The respondents' contention is that "the plaintiff's costs" ordinarily means her own costs of pursuing her action, not any other party's costs.

this appeal against Judge Healy's order must fail because to
determine the construction of the agreement it would have
been necessary to bring a separate action. It is
unnecessary to deal with that point, as the appeal must fail
in any event.

If a plaintiff sues two defendants and obtains judgment against one only, various results may ensue as to the other defendant's costs. The second defendant may obtain an order for costs against the plaintiff and then the first defendant be ordered to reimburse the plaintiff for those costs; that is sometimes called a "Bullock order". Another possibility is that the first defendant is ordered to pay the second defendants' costs. Still another is that the plaintiff is ordered to pay the second defendants' costs which do not then, directly or indirectly, fall on the first defendant.

These possibilities are discussed in a number of cases and a convenient reference is Johnsons Tyne Foundry Proprietary Limited v. Maffra Corporation (1948) 77 CLR 544 at 572 and 573.

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031297 D.1 T2/RW16 COA282/97 obtained an order for costs in terms of the agreement, as in fact she did. What the appellant's argument implies is that an order that one defendant pay the plaintiff's costs of and incidental to the action necessarily produces the result that the plaintiff must be reimbursed for any costs she is, by another order, required to pay to another party. But the question whether a plaintiff should obtain such reimbursement is always treated as a separate one, requiring a special order. An order that a defendant pay a plaintiff's costs will include an obligation to pay, as well, costs which the plaintiff is ordered to pay to another defendant only if the court expressly so orders. Whether the court will make such an order is a discretionary matter; it will not by any means always be made.

Here, the appellant does not invoke any judicial discretion as to costs, but simply says that the agreement means that the respondents have to reimburse the appellant for the costs she has been ordered to pay to another party, Mr Gambaro. It is my view that the agreement says nothing, either expressly or implicitly, about Mr Gambaro's costs.

For the reasons I have given the argument advanced by Mr Boccabella on behalf of the appellant must be rejected and the appeal must be dismissed with costs.

DOWSETT J: I agree.

HELMAN J: I agree.

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031297 D.1 T2/RW16 COA282/97

PINCUS JA: The appeal is dismissed with costs.

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5   JUDGMENT