Ella Enterprises Pty Ltd (in liquidation) v Maller Holdings Pty Ltd (No 2) [2014] QDC 258

DISTRICT COURT OF QUEENSLAND CITATION: Ella Enterprises Pty Ltd (in liquidation) v Maller Holdings Pty Ltd (No2) [2014] QDC 258 PARTIES: ELLA ENTERPRISES PTY LTD (in liquidation) (Plaintiff) and MALLER HOLDINGS PTY LTD (Defendant) FILE NO/S: 3706/2013 Brisbane DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 20 November 2014 DELIVERED AT: Townsville HEARING DATE: Hearing on the papers JUDGE: Durward SC DCJ ORDERS: 1. Order 2 in the judgment delivered on 16 October 2014 is set aside and in lieu thereof the following order is substituted: Judgment for the plaintiff in the sum of $554,024.39 plus interest in the sum of $99,670.02. 2. Order 5 in the judgment delivered on 16 October 2014 is set aside and in lieu thereof the following order is substituted: The defendant is to pay to the plaintiff its costs of the three applications on the indemnity basis, pursuant to rule 360 Uniform Civil Procedure Rules 1999. 3. Orders 1, 3, 4, and 6 in the judgment delivered on 16 October 2014 remain extant. CATCHWORDS: PRACTICE & PROCEDURE – SUMMARY JUDGMENT- INTEREST – interest on judgment calculated on the interest calculator in accordance with section 58 Civil Proceedings -- 1 of 5 -- 2 LEGISLATION: Act 2011 fixed in the sum of $99,670.02 PRACTICE & PROCEDURE – SUMMARY JUDGMENT – COSTS - where offers to settle the proceeding made by the plaintiff to the defendant – where defendant unreasonably failed to accept any of them – where the offers were each more favourable to the defendant than the judgment sum – costs on the indemnity basis ordered pursuant to r360 UCPR. Rule 360 Uniform Civil Procedure Rules 1999; section 58 Civil Proceedings Act 2011. COUNSEL: Hearing on the papers SOLICITORS: Results Legal for the Plaintiff [1] On 16 October 2014, I granted summary judgment against the defendant for part of the plaintiff’s claim, in the sum of $554,024.39; I refused two applications by the defendant; I ordered that the defendant pay to the plaintiff its costs of the three applications on the standard basis; and I gave the parties liberty to apply on seven (7) days notice. Interest and costs [2] The plaintiff has applied for leave to make further submissions limited to two matters, namely the date interest on the judgment is to accrue; and costs (in reliance upon written offers of settlement). [3] A notice about the application has been given in correspondence from the plaintiff to the defendant, but I have been told that no response has been forthcoming. In that correspondence dated 21 October 2014, the plaintiff asked the defendant to consent to orders in the nature of those sought on this application in respect of interest and costs. That specific request has not been favoured with a response from the defendant or the defendant’s current lawyers. [4] I am to consider and determine the further submissions on the papers. The relevant orders made on 16 October 2014 In so far as is relevant, the Orders in the judgment on 16 October 2014 were: “2. Judgment for the plaintiff in the sum of $554,024.39 with interest and costs”; and “5. The defendant to pay to the plaintiff its costs of the three applications, on the standard basis.” [5] No submissions were made about costs in respect of the primary application for summary judgment, at the hearing of the applications. There were submissions about -- 2 of 5 -- 3 costs in respect of one of the applications (for Security for Costs). I refused that application. Hence those limited submissions are not relevant now. Interest [6] The plaintiff first made demand for payment from the defendant on 29 June 2012. The plaintiff seeks an order that the defendant pay interest on the judgment from 29 June 2012 to 16 October 2014 pursuant to section 58 of the Civil Proceedings Act 2011, fixed in the sum of $99,670.02 (calculated on the interest calculator). [7] The date upon which interest is to accrue is appropriate in the circumstances. The plaintiff is entitled to interest as calculated in the sum to which I have referred and I will make a new Order 2. Costs [8] The existence of offers to settle were, as is customary and necessary, not known to the Court at the hearing. The offers to settle have now been disclosed. [9] The three offers to settle the proceedings were made by the plaintiff, each being more favourable to the defendant than the outcome of the judgment. Those offers were as follows: (i) On 31 October 2013, the plaintiff offered to settle the proceedings for $500,000.00 inclusive of interest and costs. That offer was open for acceptance until 20 November 2013. (ii) On 12 February 2014, the plaintiff again offered to settle proceedings for $500,000.00 inclusive of interest and costs. (iii) On 10 March 2014, the plaintiff served a formal offer to settle for $200,000.00 inclusive of interest and costs. [10] The defendant failed, refused or neglected to accept any of the offers. Rule 360 of the Uniform Civil Procedure Rules 1999 provides as follows: “Costs if offer to settle by plaintiff 360 (1) If - (a) the plaintiff makes an offer to settle that is not accepted by the defendant and the plaintiff obtains a judgment no less favourable than the offer to settle; and (b) the court is satisfied that the plaintiff was at all material times willing and able to carry out what was proposed in the offer; the court must order the defendant to pay the plaintiff’s costs calculated on the indemnity basis -- 3 of 5 -- 4 unless the defendant shows another order for costs as appropriate in the circumstances.” [11] The plaintiff submitted that the defendant’s failure to accept any of the offers was unreasonable. Certainly, the failure to accept the formal offer made on 10 March 2014 in my view was unreasonable. The order sought by the plaintiff [12] Hence the plaintiff has sought an order for the defendant to pay costs associated with the applications, on the following bases: “(a) The indemnity basis pursuant to Rule 360 Uniform Civil Procedure Rules 1999; or alternatively (b) The indemnity basis on and from 31 October 2013.” [13] The plaintiff has complied with the requirements of Rule 360 and in the absence of any submissions made by the defendant, it seems to me that costs from the date of the first demand made on 29 June 2012 should be ordered, the defendant having not shown that another order for costs is appropriate in the circumstances. I will make new orders. Conclusion [14] I revoke Orders 2 and 5 in the judgment delivered on 16 October 2014. In lieu thereof I make the following orders: “2. Judgment for the plaintiff in the sum of $554,024.39 plus interest assessed in the sum of $99,670.02.” and “5. The defendant is to pay to the plaintiff its costs of the three applications on the indemnity basis pursuant to Rule 360 Uniform Civil Procedure Rules 1999.” [15] The other Orders made on 16 October 2014, namely orders 1, 3, 4 and 6 will remain extant. Orders 1. Order 2 in the judgment delivered on 16 October 2014 is set aside and in lieu thereof the following order is substituted: Judgment for the plaintiff in the sum of $554,024.39 plus interest in the sum of $99,670.02. 2. Order 5 in the judgment delivered on 16 October 2014 is set aside and in lieu thereof the following order is substituted: The defendant is to pay to the plaintiff its costs of the three applications on the indemnity basis, pursuant to rule 360 Uniform Civil Procedure Rules 1999. -- 4 of 5 -- 5 3. Orders 1, 3, 4, and 6 in the judgment delivered on 16 October 2014 remain extant. -- 5 of 5 --