Brisbane City Council v Amos (No 2) [2016] QSC 140

SUPREME COURT OF QUEENSLAND CITATION: Brisbane City Council v Amos (No 2) [2016] QSC 140 PARTIES: BRISBANE CITY COUNCIL (plaintiff) v EDWARD AMOS (defendant) FILE NO/S: SC No 6704 of 2009 DIVISION: Trial Division PROCEEDING: General Civil Trial DELIVERED ON: 20 June 2016 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers JUDGE: Bond J ORDER: The orders of the Court are: 1. Judgment for the plaintiff against the defendant in the sum of $807,148.28, being: a) In respect of 116 Oriel Road, Clayfield, in the State of Queensland for unpaid rates and charges $83,085.20 and interest of $51,388.67; b) In respect of 118 Oriel Road, Clayfield, in the State of Queensland for unpaid rates and charges $89,509.56 and interest of $55,362.17; c) In respect of 11 Edmondstone Street, Newmarket, in the State of Queensland for unpaid rates and charges $42,149.32 and interest of $26,007.95; d) In respect of 38 Lever Street, Albion, in the State of Queensland for unpaid rates and charges $125,268.07 and interest of $83,242.16; e) In respect of 36 Parker Avenue, Northgate, in the State of Queensland for unpaid rates and charges $44,055.15 and interest of $27,141.01; f) In respect of 29 Wellington Street, Virginia, in the State of Queensland for unpaid rates and charges $48,003.65 and interest of $29,573.56; g) In respect of 85 Dickson Street, Wooloowin, in the State of Queensland for unpaid rates and charges $44,734.09 and interest of $27,602.87; h) In respect of 830 Sandgate Road, Clayfield, in the State of Queensland for unpaid rates and charges -- 1 of 5 -- 2 for utility charges $15,496.77 and interest of $14,528.08; 2. The defendant pay the plaintiff’s costs of the proceeding. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – INTEREST ON JUDGMENTS – TIME FROM WHICH INTEREST RUNS City of Brisbane (Finance, Plans and Reporting) Regulation 2010 (Qld), s 65 Brisbane City Council v Amos [2016] QSC 131, cited Mio Art Pty Ltd v Macequest Pty Ltd (No 2) [2013] QSC 271, cited COUNSEL: A Wheatley for the plaintiff J Dillon for the defendant SOLICITORS: Brisbane City Legal Practice for the plaintiff Keller Nall & Brown for the defendant [1] In this proceeding, the Brisbane City Council sued a ratepayer for rates due and owing in respect of a number of lots of rateable land. [2] By judgment published on 13 June 20161, I explained why there should be judgment in favour of the Council, together with costs. [3] I gave the parties an opportunity to formulate a form of order which was consistent with my reasons. I have since received written submissions from both sides. [4] The Council submitted that the judgment should reflect the amounts sought in its pleadings as amended for the overdue rates and charges together with interest, with the interest calculation being updated to the date of judgment. [5] Accordingly, the Council’s interest calculations proceeded by reference to the due dates as follows: (a) lots with a due date of 16 June 2010: (i) 38 Lever St (utility) - $18,067.082; (ii) 830 Sandgate Rd (utility) - $15,496.77; (b) lots with a due date of 3 February 2012: (i) 116 Oriel Rd - $83,085.20; (ii) 118 Oriel Rd - $89,509.56; (iii) 38 Lever St - $107,200.99; (c) lots with a due date of 6 February 2012: 1 Brisbane City Council v Amos [2016] QSC 131 . 2 This amount and the due date reflected the figure which flowed from the fact that the Council had submitted during closing submissions that there were 4 of the pleaded charges in respect of this item which were not pressed: see Transcript at 3-20 to 3-21 on 12 February 2016. -- 2 of 5 -- 3 (i) 11 Edmondstone St - $42,149.32; (ii) 85 Dickson St - $44,734.09; (d) lots with a due date of 8 February 2012: (i) 36 Parker Ave - $44,055.15; (ii) 29 Wellington St - $48,003.65. [6] The orders which the Council sought, if judgment was given on 20 June 2016, were as follows: (a) Judgment for the plaintiff against the defendant in the sum of $807,148.28, being: (i) In respect of 116 Oriel Road, Clayfield, in the State of Queensland for unpaid rates and charges $83,085.20 and interest of $51,388.67; (ii) In respect of 118 Oriel Road, Clayfield, in the State of Queensland for unpaid rates and charges $89,509.56 and interest of $55,362.17; (iii) In respect of 11 Edmondstone Street, Newmarket, in the State of Queensland for unpaid rates and charges $42,149.32 and interest of $26,007.95; (iv) In respect of 38 Lever Street, Albion, in the State of Queensland for unpaid rates and charges $125,268.07 and interest of $83,242.16; (v) In respect of 36 Parker Avenue, Northgate, in the State of Queensland for unpaid rates and charges $44,055.15 and interest of $27,141.01; (vi) In respect of 29 Wellington Street, Virginia, in the State of Queensland for unpaid rates and charges $48,003.65 and interest of $29,573.56; (vii) In respect of 85 Dickson Street, Wooloowin, in the State of Queensland for unpaid rates and charges $44,734.09 and interest of $27,602.87; (viii) In respect of 830 Sandgate Road, Clayfield, in the State of Queensland for unpaid rates and charges for utility charges $15,496.77 and interest of $14,528.08; (b) The defendant pay the plaintiff’s costs of and incidental to this proceeding, to be assessed on the standard basis, if not agreed. [7] The total amount of the interest component part of the judgment which the Council sought was $314,846.47. [8] The defendant did not contest the Council’s claim that interest was applied to overdue rates and charges at the rate of 11% compounded daily. Nor did he contest any of the Council’s calculations performed on that basis. He contended only for the following two amendments to the orders which the Council had sought: (a) Interest on the judgment amounts for each lot should be calculated from the day after the date on which the Council’s further amended claim was delivered, i.e. from 3 March 2012, the result of which would be to reduce the total interest component from $314,846.47 to $297,082.58. (b) An order that the Council pay the defendant’s costs thrown away by the Council’s amendments to its claim and statement of claim which were made in August 2011 and February 2012. [9] As to the defendant’s first point: (a) He advanced no reasons in support of his contention that the calculations should proceed from the date on which the Council’s further amended claim was delivered. -- 3 of 5 -- 4 (b) The Council submitted that there was no proper basis to apply interest only from those dates because – (i) pursuant to s 65(1)(b) of City of Brisbane (Finance, Plans and Reporting) Regulation 2010 (Qld) interest was payable from the day that the rates or charges became overdue; and (ii) the dates used in the Council’s calculation (which I have identified at [5] above) were the applicable dates when the rates or charges for each lot became due. (c) I agree and note also that there is no relevant pleaded dispute to the amounts and due dates pleaded in the schedule to the Council’s further amended statement of claim. The defendant has not advanced any submission which justifies a departure from the details asserted by the Council. The judgment should be in the amounts which the Council seeks. [10] As to the defendant’s second point: (a) The defendant relied on UCPR 386 read in conjunction with UCPR 378. (b) UCPR 386 provides “The costs thrown away as a result of an amendment made under rule 378 are to be paid by the party making the amendment unless the court orders otherwise.” UCPR 378 permits amendment for which leave is not required to be made at any time before the filing of a request for trial date. (c) The Council submitted that there should not be any qualification to the costs order made in its favour, which had the effect of requiring it to pay any of the defendant’s costs. (d) The Council pointed out that the orders were made by leave of the Court. (e) The August 2011 amendments had been made pursuant to leave given by consent order made by Dalton J on 10 August 2011 and had the effect of seeking recovery of an additional $109,000 in rates or charges which had become overdue since the proceeding commenced. Moreover, the consent order provided that the parties’ costs of and incidental to the application for leave would be each party’s costs in the proceeding. (f) The February 2012 amendments had also been made pursuant to leave given by consent order made by Philippides J (as her Honour then was) on 15 February 2012 and had the effect of increasing the total amount of rates or charges claimed by the Council from $446,122.25 to $494,058.87. The consent order contained a costs order in the Council’s favour which was inconsistent with the notion that the Council should pay the defendant’s costs thrown away by the amendment. (g) I agree that the defendant has not advanced any submission justifying any qualification to the order which would ordinarily follow from his having failed in his various attempts to resist being required to pay Council rates and charges. He should pay the Council’s costs of the proceeding. [11] I make the following orders: (a) Judgment for the plaintiff against the defendant in the sum of $807,148.28, being: (i) In respect of 116 Oriel Road, Clayfield, in the State of Queensland for unpaid rates and charges $83,085.20 and interest of $51,388.67; (ii) In respect of 118 Oriel Road, Clayfield, in the State of Queensland for unpaid rates and charges $89,509.56 and interest of $55,362.17; -- 4 of 5 -- 5 (iii) In respect of 11 Edmondstone Street, Newmarket, in the State of Queensland for unpaid rates and charges $42,149.32 and interest of $26,007.95; (iv) In respect of 38 Lever Street, Albion, in the State of Queensland for unpaid rates and charges $125,268.07 and interest of $83,242.16; (v) In respect of 36 Parker Avenue, Northgate, in the State of Queensland for unpaid rates and charges $44,055.15 and interest of $27,141.01; (vi) In respect of 29 Wellington Street, Virginia, in the State of Queensland for unpaid rates and charges $48,003.65 and interest of $29,573.56; (vii) In respect of 85 Dickson Street, Wooloowin, in the State of Queensland for unpaid rates and charges $44,734.09 and interest of $27,602.87; (viii) In respect of 830 Sandgate Road, Clayfield, in the State of Queensland for unpaid rates and charges for utility charges $15,496.77 and interest of $14,528.08; (b) The defendant pay the plaintiff’s costs of the proceeding.3 3 I have modified the wording of the order from that sought by the Council, not because I intend to narrow the ambit of the order, but because the additional verbiage is not required, for reasons explained by Jackson J in Mio Art Pty Ltd v Macequest Pty Ltd (No 2) [2013] QSC 271 at [6] to [22]. -- 5 of 5 --