Dovedeen Pty Ltd v Maund & Anor [2020] QDC 255

DISTRICT COURT OF QUEENSLAND CITATION: Dovedeen Pty Ltd v Maund & anor [2020] QDC 255 PARTIES: DOVEDEEN PTY LTD (Plaintiff) v RONALD EARLE MAUND (First Defendant) AND KAREN-LEE MAUND (Second Defendant) FILE NO: 16 of 2017 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: Toowoomba District Court DELIVERED ON: 7 October 2020 DELIVERED AT: Brisbane HEARING DATE: Decision on the papers JUDGE: Porter QC DCJ ORDER: 1. The plaintiff pay the defendants costs of the proceedings including reserve costs fixed at $7500. 2. The plaintiff pay interest to the defendants in the amount of $42,877.48. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the plaintiff commenced proceedings in the Magistrates Court in 2013 – where the defendants’ counterclaim relied on at trial was filed in 2017 – where the plaintiff’s claim was dismissed – where the defendants’ counterclaim was upheld to the extent of $132,000 – where there has been delay on both sides in advancing the litigation – where costs should follow the event – whether interest pursuant to s. 58 CPA should be awarded. COUNSEL: D Edwards (direct-access) for the Plaintiff Defendants self-represented SOLICITORS: D Edwards (direct-access) for the Plaintiff Defendants self-represented -- 1 of 5 -- 2 Summary [1] For the reasons given in Dovedeen Pty Ltd v Maund [2020] QDC 238 (the Reasons), I dismissed the plaintiff’s claim and upheld the defendant’s counterclaim to the extent of $132,000. As explained in paragraph [214] of the Reasons, I otherwise dismissed the counterclaim. That resulted in the defendant succeeding on $132,000 out of a total counterclaim of $702,690.71: $163,582 of which related to a failed claim for fees for care of foals and $361,435 being a failed claim for compounding contractual interest. [2] I gave the parties an opportunity to be heard on costs and interest. [3] For the reasons which follow I order: (a) The plaintiff to pay the defendants’ costs of the proceedings fixed at $7500; and (b) The plaintiff pay interest in relation to the judgment sum awarded on the counterclaim of $42,877.48. Costs order [4] The defendants succeeded in their defence of the claim and on their counterclaim. The plaintiff accepts that costs should follow the event on the claim but that the defendants should recover only part of their costs on the counterclaim. [5] The difficulty with that submission is that the parts of the counterclaim which were unsuccessful played virtually no part in the trial. Almost all the evidence at trial was concerned with the defence of the claim and making good the contract under which the counterclaim was advanced. I do not consider there was any meaningful event which could attract a partial costs order in relation to the unsuccessful elements of the counterclaim. [6] However, it is relevant that the counterclaim could have been brought in the Magistrates Court. That remains so regardless of any award of interest under s. 58 Civil Proceedings Act.1 It seems to me therefore that r. 697(1) UCPR is applicable and the costs must be assessed as if the proceedings had been started in the Magistrates Court unless I order otherwise. I do not order otherwise. [7] That conclusion is largely moot in any event because this proceeding was conducted in the Magistrates Court from commencement in April 2013 until April 2017. The defence and counterclaim relied upon at trial, settled by counsel, were filed in June 2017 but after that, the defendants became self-acting. It can be seen then that much of the conduct of the case was in the Magistrates Court. [8] The plaintiff raised an issue about reserved costs. It contended that the costs reserved on a security for costs application brought by the defendants should not be ordered as part of the costs of the proceedings. However, nothing the plaintiff put before the Court put me in a position to determine that the application was not properly brought 1 Johns v Johns [1988] 1 Qd R 138; Van Riet v ACP Publishing Pty Ltd [2004] 1 Qd R 194 -- 2 of 5 -- 3 at the time. The assertion that the plaintiff had resources and was known to have resources was neither properly proved as at the time of the application, nor necessarily determinative of the issue of the reasonableness of bringing the application. [9] In any event, that relief was sought as part of the application to transfer. True it is that the transfer part of that application should not have been brought. But that application sought and obtained other relevant relief, apart from the transfer and the attempt at obtaining security: see Court Document 6. I was not persuaded that those reserved costs for that application as a whole should not be included in the order for costs of the trial: r. 698 UCPR. [10] Accordingly, the costs should be awarded to the defendant of the proceedings, including reserved costs, on the standard basis and on the Magistrates Court scale. Rather than ordering these costs to be assessed, I intend fixing them. Fixing of the amount of costs [11] The defendants sought fixing of the amount of costs awarded under r. 687(2)(d) UCPR. Given the long and inefficient history of the conduct of this matter, the interests of justice strongly favour determining the question of the amount of costs today if possible. [12] The defendants put on evidence of costs in the amount of $12,250.25 supported by tax invoices and fee particulars from their solicitors who acted relevantly in the period of February 2017 to June 2017. That included the amended pleading (settled by counsel) taken to trial and the applications to Court referred to above. [13] The evidence did not cover the period 2013 to January 2017. It is disclosed on the Court documents that Bernays Lawyers were acting in at least some of that period: see the original defence filed 24 October 2013. [14] The plaintiff complains that the fee particulars supporting the tax invoices provided by the defendants relate to this matter and another matter and it is not properly proved that the sum claimed related solely to this proceeding. There is some merit in that submission as to the mode or proof, though the submission appears to have been made in an outline prepared by a solicitor and based on advice from another solicitor. [15] On the other hand, it is notable that on the Magistrates Court scale for the relevant period,2 this proceeding, both as to claim and counterclaim, would not have attracted scale items. However, at the highest scale with itemised costs (Scale G, $20,001 to $50,000), costs which would have been recoverable would have been in excess of $4,000 for the parts of the proceeding for which solicitors were acting3 (See Item 1, 2, 2 x Item 6, 2 x Item 10). This sum ignores the work done on the amended pleadings, care and consideration for the matter, as well as ignoring that the proceedings concerned much larger amounts than in Scale G. 2 Scale applicable from 1/7/13 to 23/8/18 and see r. 691(8) UCPR 3 Obviously no legal costs are recoverable where a party is self-acting -- 3 of 5 -- 4 [16] Having regard to the scale as applicable to much more modest claims, the evidence included in the defendants’ submissions and my familiarity with the history of the proceedings, I fix the amount for costs for the defendants at $7500. Interest [17] The defendants seek interest under s. 58 Civil Proceedings Act. [18] The defendants pleaded only a claim for interest under the contractual term. They did not plead a claim for interest in the alternative under s. 58. Strictly speaking, such a claim should be expressly pleaded, along with the amount of interest claimed: see rr. 149(1)(e) and 150(1)(h) UCPR. In a case such as this, it should be pleaded as an alternative to the contractual claim for interest. However, the defendants by their outline of submissions claim interest under s. 58 and the plaintiff in reply did not contend that they were substantively prejudiced by the claim for interest being informally advanced in that manner. Rather, the plaintiff advanced reasons why such interest should not be allowed. It seems to me in those circumstances that it is open to me to consider the defendants’ claim for interest under s. 58. [19] The plaintiff argued by its submissions that I should find that the delay in the proceedings after the filing of the counterclaim lay at the door of the defendants as the plaintiff had “chosen not to agitate its claim against the Maunds”. There are two difficulties with that submission: the plaintiff put no evidence (formal or informal) before me to justify that conclusion and the plaintiff pursued its claim against the Maunds with vigour at trial. The plaintiff never discontinued its claim nor was any evidence put before me that it sought to do so. At all times the plaintiff had impliedly undertaken to proceed in an expeditious way: r. 5(3) UCPR. On the other hand, it should be recognised that the defendants, as counterclaimants, had an equivalent duty and was in equivalent breach of their duty in the manner they pressed their counterclaim. [20] There is some evidence that the defendants did try to push the matter forward on one occasion: it was the defendants who brought the proceedings into this Court and substantially amended in 2017. However, after that activity the defendants’ pursuit of their counterclaim seems to have gone back to sleep, largely it seems because the defendants became self-acting. The matter was only resolved in the end by activity from the Court to bring the proceedings to finality. [21] Although both parties were in default of their implied undertaking, strictly speaking it was the defendants’ default which impacted on progress of the counterclaim. However, it would not be right to view the whole proceeding in that narrow way. Both parties were content not to pursue their claims with vigour. On the other hand, the ultimate result of the trial was that the plaintiff kept the defendants out of fees to which they were entitled under the contract for some 7 years. The plaintiffs have had the benefit of the defendants’ money for that long period. [22] Ultimately, it seems to me that a just reflection of these considerations is to award the defendants interest for 75% of the prejudgment period. The defendants did not assist the Court by calculating the interest payable under s. 58. Adopting the commencement of proceedings as the start of the pre-judgement interest period for -- 4 of 5 -- 5 simplicity, the Court Interest Calculator4 generates interest of $57,169.98. I can see no reason not to apply the rates adopted by that Calculator. They seem reasonable in the circumstances of this case. Adopting the figure of 75%, the amount of interest to be awarded is $42,877.48. [23] I have caused the submission of both parties to be placed on the file with one exception. Mr Maund sent a copy of Mr Edwards’ submissions with hand written comments, some of which involved assertions of fact and some of which were insulting. I did not take that document into account in this judgment and have placed it in the correspondence section of the file. Conclusion [24] I award the defendants interest of $42,877.48 and costs fixed at $7500. 4 https://www.courts.qld.gov.au/courts-calculator/calculator -- 5 of 5 --