Collett v Robina Projects Australia Pty Ltd t/a Easy T Retail Centre & Ors [2009] QDC 117

DISTRICT COURT OF QUEENSLAND CITATION: Collett v Robina Projects Australia Pty Ltd t/a Easy T Retail Centre & Ors [2009] QDC 117 PARTIES: DIANE COLLETT (Applicant) AND ROBINA PROJECTS AUSTRALIA PTY LTD T/A EASY T RETAIL CENTRE (First Respondent) AND BROAD CONSTRUCTION SERVICES (QLD) PTY LTD (Second Respondent) AND COTTEE PARKER ARCHITECTS PTY LTD (Third Respondent) AND CERTIS GOLD COAST PTY LTD (Fourth Respondent) AND LG FORMWORK PTY LIMITED (Fifth Respondent) AND ULTRA TILING QUEENSLAND (Sixth Respondent) AND BLUE CHIP CONCRETE SERVICES PTY LTD (Seventh Respondent) AND CORPORATE SOLUTIONS PTY LTD (Eighth Respondent) -- 1 of 11 -- 2 FILE NO/S: BD269/09 DIVISION: Civil PROCEEDING: Originating application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 9 April 2009 DELIVERED AT: Brisbane HEARING DATE: Final written submissions on costs received on 27 March 2009 JUDGE: Irwin DCJ ORDER: The Applicant pay the costs of and incidental to these proceedings of the First Respondent, the Second Respondent, the Fourth Respondent, the Fifth Respondent, the Sixth Respondent, the Seventh Respondent, and the Eighth Respondent as agreed or assessed on the standard basis. CATCHWORDS: COSTS – General Rule – costs follow the event COSTS – Whether to order that costs be paid within a nominated time PRATICE AND PROCEDURE – Whether to correct an aspect of original judgment – where correction related to interpretation of a file note which was a substantive aspect of the judgement – where the ultimate decision was not affected by the original interpretation Walden v Council of the City of Townsville [2004] QDC 23 considered R v Topou; ex parte A-G [2004] QCA 179 UCPR rr 681, 660(2), 661(4), 681, 740 COUNSEL: Mr RJ Oliver for the applicant Mr KF Holyoak for the respondents (except for the third respondent against whom the application did not proceed) SOLICITORS: Shane Ellis Lawyers for the applicant Barry & Nilsson for the respondents (except for the third respondent) -- 2 of 11 -- 3 Costs [1] When I gave judgment in this matter on 13 March 2009 dismissing the application1 I was requested by the parties not to make a final costs order at that time, but to receive written submissions on the issue. [2] At the time of the request the parties were aware that I had contemplated an order that the Applicant pay the Respondents’ costs of and incidental to the application on the standard basis. However, I acceded to this request. [3] Each party has filed two written submissions on the issue. In the submissions filed on 20 March 2008 the parties agreed that the costs of the proceedings ought to follow the event in accordance with the general rule, now expressed in UCPR r 681. [4] However, the submissions raised additional issues for consideration. [5] Mr Holyoak, counsel for the Respondents (except for the Third Respondent against whom the application did not proceed) sought the following orders: “1. The Applicant pay the costs of and incidental to these proceedings of the First Respondent, the Second Respondent, the Fourth Respondent, the Fifth Respondent, the Sixth Respondent, the Seventh Respondent, and the Eighth Respondent to be assessed on the standard basis; 2. That such costs be paid by the Applicant to each of the said Respondents by no later than 21 days after the assessment of such costs.” [6] In a submission dated 25 March filed in reply to the Applicant’s initial submission, Mr Holyoak expressed the reason that an order in terms of paragraph 1 was sought, as follows: 1 [2009] QDC 53. -- 3 of 11 -- 4 “3. In view of the fact that the Third Respondent did not participate, the Respondents respectfully suggest that the form of order suggested by the Respondents better facilitates and makes certain the intent of the Court by individually listing and naming the Respondents which have the benefit of the costs order.” I agree with this submission. I do not understand Mr Oliver, counsel for the Applicant, to take a contrary view. [7] However, Mr Oliver does take issue with paragraph 2 of the proposed order. He submitted that there is no need for a nominated time for payment and that the order for costs should be “as agreed or assessed”. [8] When Mr Holyoak responded to the Applicant’s submission on 25 March 2009, he sought: “an order for payment of the costs within seven (7) days of the costs assessment becoming enforceable. It is enforceable immediately at the lapse of those 14 days.” [9] In support of this proposition, he referred to the following matters: • If no time limit is expressed, then the costs order takes effect on the day it is made unless it is ordered to take effect on a different day.2 • A costs order becomes payable, and can be enforced,3 from the time costs have been assessed. 4 • Although the costs are payable upon a certificate of assessment being filed, which takes effect as a judgment of the Court,5 the order is not enforceable until at least 14 days after it is made. 6 2 UCPR r 660(2). 3 UCPR r 661(4). 4 Walden v Counsel of the City of Townsville [2004] QDC 23; UCRP r 798. 5 UCRP r 740(1) and (2). 6 UCPR r 740(3). -- 4 of 11 -- 5 • Given the subject matter of the originating application before the Court, the Respondents wish to quickly finalise the outstanding issues, including the payment of costs. At the time the agreement about costs or the costs assessment process is complete under the UCPR, the involvement of the parties in this litigation, and the primary claim out of which this litigation arose will be of longstanding, payment within 21 days thereafter, or 7 days from when the order becomes enforceable is not unreasonable. [10] As set out in the “Background” section of my 13 March 2009 judgment, the primary claim arises out of a workplace injury suffered by the Applicant on 6 November 2006. [11] The application, the subject of that judgment, concerned the consequences of negotiations conducted between 13 and 16 October 2008 by Mr Percival on behalf of the Applicant and Mr Shannon on behalf of the Respondents with a view to resolving the claim for damages. Messrs Percival and Shannon are solicitors. [12] As a result of these negotiations, on 16 October 2008 Mr Shannon sent the terms of an offer to settle the claim to Mr Percival who accepted on behalf of the applicant. This document constituted the terms of settlement. [13] Mr Shannon had advised Mr Percival during the settlement negotiations that a Release discharge would be prepared. Accordingly a “Deed of Release” was forwarded by Mr Shannon on 27 October 2008, and it was signed by the Applicant and returned by facsimile transmission on 5 November 2008. [14] Subsequently Mr Percival received on behalf of the Applicant $18,500 less than he expected to receive as a consequence of the settlement. -- 5 of 11 -- 6 [15] As a consequence, the application was made for a declaration as to the true construction of the terms of settlement, or alternatively rectification of the Deed of Release to give effect to Mr Percival’s expectation. [16] In dismissing the application I decided that: • The Deed of Release was the operative settlement agreement. • The Applicant having executed the Deed was bound by its terms. • The receipt by the Applicant of $18,500 less than expected was in accordance with the terms of the Deed. • The fundamental basis for the grant of rectification of the Deed had not been established. [17] The fundamental basis for the grant of rectification required the applicant to persuade the Court on the balance of probabilities by convincing proof that there was an antecedent concluded agreement or at least a disclosed common intention that continued unaltered to the time of execution of the Deed, and that the Deed did not embody the final intention of the parties. In addition, it was necessary to show by clear and convincing proof what that common intention was, and in particular that it was inconsistent with the specified paragraphs being inserted in the Deed. [18] In deciding that the Applicant had not discharged this onus, I concluded after a detailed analysis of the evidence of Messrs Percival and Shannon that, while they each gave a truthful account of events as they perceived them, their intentions were different. It was for this reason I said at paragraph [123] of the judgment: -- 6 of 11 -- 7 “Therefore the intention of Mr Percival was different to the intention of Mr Shannon. What this demonstrates is that the applicant has failed to show by convincing proof that there was common intention of the nature submitted on her behalf which continued until the time of the execution of the Deed. Put another way, the applicant has failed to show by convincing proof that there was a shared common intention that the Deed did not embody so as to displace the primacy of the Deed.” [19] Therefore it is correct for Mr Oliver to submit in his reply to Mr Holyoak’s 25 March 2009 submission that “the reasons demonstrate that there was a genuine confusion and misunderstanding between Mr Percival and Mr Shannon as to the terms of the settlement.” [20] As is apparent from my reasons for judgment, this was never a clear cut issue, and one which was reasonable to resolve by a judicial determination. Further, the Respondents have properly had the benefit of settling the claim without payment of the disputed $18,500 since at least 15 January 2009 when Mr Percival received the settlement cheques, and will continue to do so. [21] In these circumstances, the Respondents have not satisfied me that they should receive other than the usual order for costs in this case. [22] This is in accordance with the order I contemplated at the time of delivery of judgment, but incorporating the greater precision and certainty suggested on behalf of the Respondents, and also the express addition of the option of an agreement being reached about the costs. [23] It follows that the Applicant will be ordered to pay the costs of and incidental to these proceedings of the First Respondent, the Second Respondent, the Fourth Respondent, the Fifth Respondent, the Sixth Respondent, the Seventh Respondent, and the Eighth Respondent as agreed or assessed on the standard basis. -- 7 of 11 -- 8 Amendment of original judgment [24] In his addition to his submissions of 20 March 2009 as to costs, Mr Oliver requests that I give consideration to making a correction in paragraphs [113] and [114] of my judgment to the reference to “7 am”. These paragraphs are as follows: “[113] In the case of Mr Percival, having originally deposed that “RPL1” was a contemporaneous record of a conversation on the afternoon of 15 October 2008 and recording in it a commencement time of 4.30 (concluding at 4.40) and costs and finishing with the entry: “he get back to me he said by time he rung around 7 am”, in his second affidavit he deposed that having perused Mr Shannon’s affidavit and referred back to his office file he realised this conversation “must have occurred on the morning of 16 October 2008 rather than the afternoon of 15 October 2008.” [114] Therefore Mr Percival’s original recollection that this was a contemporaneous file note commencing at “4.30” is placed in doubt, as is the accuracy of the conversation recorded with reference to Mr Shannon getting back to him “around 7 am”. (emphasis added) [25] Mr Oliver submits that Mr Percival’s diary note which constitutes “RPL1” is in fact: “… he get back to me he said by time ring around am.” [26] He submits that although what I interpreted as a “7” does look like a “7”, it is in fact the bottom of the “y” in “by” in the line above.7 Upon further consideration of this file note in Mr Percival’s handwriting, I agree with Mr Oliver. Although the word which he suggests as “ring” could also be read as “rung”, I proceed on the basis that the last words of the note are “around am” and not “around 7 am”. I interpret this to be a note to the effect that Mr Shannon told him that he would get back to him in the morning. 7 Mr Holyoak did not respond to this in his 25 March 2009 submission. -- 8 of 11 -- 9 [27] In deciding whether to make this requested correction, it is relevant to consider the context and purpose that I referred to my interpretation of this diary note in the judgment. [28] As appears from paragraph [119], this was in the context of “resolving disputed recollections on behalf of the lawyers. The resolution of this dispute was relevant to the determination of whether the applicant had satisfied me that the fundamental basis for rectification had been established as set out in paragraph [17] above. In particular, it was relevant to whether I was persuaded on the balance of probabilities by convincing proof that there was a disclosed common intention that continued unaltered to the time of the execution of the Deed, and that the Deed did not embody this final intention. [29] In this context, paragraphs [113] and [114] were relied on in support of the proposition at paragraphs [14] and [111] of the judgment that I did not consider that the file notes of either solicitor assist me to determine the actual contents of their conversations where there was a dispute. [30] Paragraph [114] immediately precedes paragraph [115] which is: “This places in doubt Mr Percival’s recollection of the detail of the conversations as deposed to in his affidavit. They are more likely to reflect his perception of the conversations in accordance with what he was seeking to achieve.” [31] Therefore my interpretation of the diary note as “around 7 am” rather than “around am” was a substantive aspect of the judgment which was a reason for reaching the conclusion in paragraph [115]. -- 9 of 11 -- 10 [32] Although it has been said that the judge is rightly allowed considerable licence in the revision of judgments delivered extempore in civil cases,8 as this interpretation of the diary note was a substantive aspect of a considered written judgment, I do not consider that it is appropriate to make the correction. [33] Although the reference to “around 7 am” cannot now be considered as being a fact which places in doubt Mr Percival’s recollection of the detail of the conversations as deposed to in his affidavit, this conclusion continues to be supported by the other fact in paragraph [114] which was relied on to support this proposition: “Mr Percival’s original recollection that this is a contemporaneous file note commencing at ‘4.30’ is placed in doubt.” [34] Importantly, the reference to “7 am” and the purpose that it is referred to in the judgment does not effect my ultimate decision that the Applicant had not discharged the onus because while Messrs Percival and Shannon gave a truthful account of events as they perceived them, their intentions were different. [35] I had already concluded at paragraph [110] that: “As I have observed, each counsel relied on aspects of the evidence given by the lawyer whom he cross-examined in support of his client’s case on the basis this evidence was truthful. From my careful observation the evidence of each witness was a truthful account of events as they perceived them; and I considered areas of contention as to their conversations were as a result of their misconstruing what the other said.” [36] As set out at paragraph [111] their file notes did not assist me to determine the actual contents of their conversations where there had been a dispute. 8 R v Topou; ex parte A-G (Qld) [2005] QCA 179 per de Jersey CJ (with whom Atkinson and Mullins JJ agreed) at page 8. -- 10 of 11 -- 11 [37] As appears from [118] to [122] of the judgment, I reached the conclusion in paragraph [123] that the intention of Mr Percival was different from Mr Shannon without reference to the file notes and in particular to my interpretation of “RPL1” as including “around 7 am” as opposed to “around am”. [38] Therefore my ultimate conclusion at paragraph [123] has been reached without reliance on this interpretation. [39] For these reasons my decision to dismiss the application is not affected by this interpretation. [40] I do not make the correction as requested. The issue raised by Mr Oliver is best addressed by this judgment being read in conjunction with that delivered on 13 March 2009. -- 11 of 11 --