Carver & Anor v Hill t/a AJ & MJ Hill's Removals & Anor (No 2) [2010] QDC 498

DISTRICT COURT OF QUEENSLAND CITATION: Carver & Anor v Hill & Oth (No 2) [2010] QDC 498 PARTIES: DAVID CARVER and MARGARET CHALMERS Plaintiffs v ALLEN JAMES HILL trading as AJ & MJ HILL’S REMOVALS 1st Defendant and SAMILY PTY LTD ACN 122 811 483 trading as OCEAN AND OUTBACK HOUSE REMOVALS 2nd Defendant FILE NO/S: D50/08 DIVISION: Civil PROCEEDING: Decision on Costs ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 24 December 2010 DELIVERED AT: Brisbane HEARING DATE: Submissions received in writing 26 November & 7 December 2010 JUDGE: Ryrie DCJ ORDER: 1. The defendants pay to the plaintiffs their costs of and incidental to the proceedings to be assessed on a standard basis and on the Magistrates Court scale. 2. The first defendant pay to the plaintiffs their (reserved) costs in respect of the application for substituted service to be assessed on a standard basis and on the Magistrates Court scale. CATCHWORDS: COSTS Uniform Civil Procedure Rules 1999 (Qld) rr 361; 681; 684 & 697 Thiess v T.C.N. Channel Nine Pty Limited (No. 5) [1994] 1 Qd R 156, considered White v Calstores [2006] QCA 535, applied -- 1 of 4 -- 2 COUNSEL: D Power, solicitor, for the plaintiffs B Wessling-Smith of counsel for the defendants SOLICITORS: Bernays Lawyers for the plaintiffs Corser Sheldon & Gordon for the defendants [2] On the 29th October 2010, the amount of $6,500 inclusive of interest was awarded in the plaintiffs’ favour in respect of their claim for damages for trespass. The background facts which gave rise to that claim are set out in my written judgment. At the time of its’ publication, I invited the parties to make submissions in writing with respect to costs within 28 days, failing any agreement between the parties, if the usual order as to costs was not appropriate. Written submissions were then received from both parties which I have now marked exhibits for the purpose of this decision. [3] In short, the plaintiffs say they are entitled to have their costs of and incidental to the proceedings including any reserved costs assessed at the District Court Scale. [4] The defendants on the other hand say that any order as to costs made in favour of the plaintiffs should only be assessed at the Magistrates Court Scale as there is no reason for the Court to order otherwise: Uniform Civil Procedure Rules 1999 (Qld) (UCPR) r 697. [5] The defendants also say that because they substantially defended the plaintiffs’ claim and the plaintiffs only achieved modest success before this court, the defendants are entitled to have up to 80% of their costs, to be assessed at the District Court Scale, paid by the plaintiffs: UCPR r 684. The applicable law [6] Costs of a proceeding, including any application in a proceeding, are in the discretion of the court and will follow the event, unless the court orders otherwise: UCPR r 681. UCPR r 697 however provides that if a judgment obtained by a plaintiff is such that when the proceedings began, it could have been given in a Magistrates Court, then costs must be assessed as if the proceeding had been started in that Court, unless the court orders otherwise. The parties’ respective submissions [7] The plaintiffs submit that the costs of and incidental to the proceedings including any reserved costs should be assessed at the District Court Scale. In support of that submission, the plaintiffs say that because the quantum of Mr Sam’s calculations was ‘never contested nor any evidence to the contrary was raised by the defendants in respect of it’, it follows that the quantum of their claim always fell within this court’s jurisdiction for determination and as such, their costs should be assessed in accordance with the District Court scale. [8] That submission, in my mind, overlooks the observations which I made at paragraphs [20], [32] to [35] set out in my reasons for decision. Even though Mr Sam’s calculations as to quantum were helpfully set out in his report, the fact remains the same. That report did not provide any evidence at all as to any -- 2 of 4 -- 3 difference in value of the plaintiffs’ land before or after the alleged trespass. Nor did it support a conclusion in any event, that there were other sufficient reasons to justify the replanting of approximately 100 x 2 metre high trees throughout the alleged trespass area as proposed by Mr Sams. Nor was there any expert opinion provided to this court to support a conclusion that the damage which Mr Sams had observed to the vegetation in the alleged trespass area in July 2008 had in fact been caused as a result of the defendant’s truck and trailers having driven over it twice (my emphasis added). Those factors, when taken together with the actual amount sought for exemplary damages, leads me to conclude that the judgment which the plaintiffs obtained in this court could well have been given in a Magistrates Court when the proceedings began. I find no reason to order otherwise particularly in view of the way the plaintiffs’ case against the defendants was conducted (see paragraph [5] of my reasons for decision). [9] It follows then that I find that the plaintiffs’ costs of and incidental to the proceedings including any reserved costs (as to substituted service) be assessed at the Magistrates Court Scale. [10] In this regard, the defendants argue that any costs awarded in the plaintiffs’ favour ought to be limited to Item 1 and 15 of Magistrate’s Court Scale D only. In support of this submission, the defendants say that because they had admitted to having trespassed over the plaintiffs’ land, the plaintiffs could have made a summary judgment application seeking nominal damages (plus interest) before the Magistrates Court. That submission, in my mind, overlooks the following considerations. While it is accepted that the defendants had always admitted to a trespass over the plaintiffs’ land without permission, any damages which flowed from it would still have needed to be assessed in any event upon any such application regardless of which court was required to hear it. Indeed, that step was always necessitated by the defendants’ continued denial that they had in fact caused any loss or damage as alleged or at all as a consequence of their trespass. [11] The defendants also submit that the plaintiffs should be made to pay them up to 80% of the District Court Scale in accordance with UCPR r 684. In support of that submission, the defendants point to the fact that they were required to and in fact did successfully defend substantially the (3) main issues ventilated at trial; whether or not the land was ‘cleared’ by the defendants as a result of any trespass by them; the quantum of any alleged loss and whether the defendants had acted with malice. [12] At first blush, this submission has some merit. This is particularly so where the case actually conducted at trial by the plaintiffs was somewhat different to that pleaded against the defendants insofar as the actual nature of the trespass per se. However, that factor alone is not fatal to the plaintiffs, as observed by Justice Keane (as he then was) in White v Calstores [2006] QCA 535 at paragraph [19]. The case that was actually conducted at trial by the plaintiffs regarding the nature of the trespass (that is, the defendants’ having driven over the plaintiffs’ land twice) was in effect what the defendants admitted to doing in any event. In those circumstances, it was therefore incumbent upon the defendants to have anticipated that an award of damages against them was always open, and should have taken advantage of UCPR r 361 (Costs if offer to settle by defendant) in order to protect their position. Further, while no exemplary damages were ultimately awarded in the plaintiffs favour, this particular issue was always only going to be determined at trial primarily on the credibility of witnesses and as such, the seeking of such an award was not entirely -- 3 of 4 -- 4 without merit. Nor do I consider, having regard to the relevant considerations set out in Thiess v T.C.N. Channel Nine Pty Limited (No. 5) [1994] 1 Qd R 156 at 206- 10, that such an order in the defendants’ favour ought to be made in this case particularly in light of the reasons already stated. Final Orders 1. The defendants pay to the plaintiffs their costs of and incidental to the proceedings to be assessed on a standard basis and on the Magistrates Court scale. 2. The first defendant pay to the plaintiffs their (reserved) costs in respect of the application for substituted service to be assessed on a standard basis and on the Magistrates Court scale. -- 4 of 4 --