Brenhaven v Harbrae (No 2) [2008] QDC 280

DISTRICT COURT OF QUEENSLAND CITATION: Brenhaven v Harbrae (No 2) [2008] QDC 280 PARTIES: BRENHAVEN PTY LTD (ACN 007 119 655) (Plaintiffs) AND HARBRAE PTY LTD (ACN 010 601 733) (Defendant) FILE NOS: 161/07 DIVISION: District Court of Queensland, Maroochydore PROCEEDING: Civil hearing ORIGINATING COURT: Maroochydore District Court DELIVERED ON: 28.11.08 DELIVERED AT: Maroochydore HEARING DATE: 27.10.08, submissions received 10.11.2008 and 24.11.2008 JUDGE: Judge J.M. Robertson ORDER: The plaintiff to pay 50% of the defendant’s costs of and incidental to the claim, to be assessed on the standard basis. CATCHWORDS: COSTS – Where successful defendant succeeded on a point not specifically pleaded or argued at trial; whether costs should follow the event. COUNSEL: Ms. Muir for the Plaintiff Mr. Callow (Solicitor) for the Defendant SOLICITORS: Ellison Moschella & Co for the Plaintiff Shultz Toomey O’Brien Lawyers for the Defendant [1] On 6th November, I dismissed the plaintiffs claim. I allowed each party to make submissions in relation to costs and both Mr. Hackett and Ms. Muir have provided written submissions. -- 1 of 5 -- 2 [2] The usual order is that costs follow the event, however the court’s discretion is otherwise unfettered and it can make another order which “is more appropriate”: r689(1) Uniform Civil Procedure Rules. [3] Mr. Hackett submits that the defendant should have its costs, assessed on the indemnity basis. [4] The defendant made an effort to settle on 4.6.08 on the basis that the plaintiff discontinue and each party bear its own costs. Obviously, the offer was not accepted. [5] R 361 is in these terms: “361 Costs if offer to settle by defendant (1) This rule applies if-- (a) the defendant makes an offer to settle that is not accepted by the plaintiff and the plaintiff obtains a judgment that is not more favourable to the plaintiff than the offer to settle; and (b) the court is satisfied that the defendant was at all material times willing and able to carry out what was proposed in the offer. (2) Unless a party shows another order for costs is appropriate in the circumstances, the court must-- -- 2 of 5 -- 3 (a) order the defendant to pay the plaintiff's costs, calculated on the standard basis, up to and including the day of service of the offer to settle; and (b) order the plaintiff to pay the defendant's costs, calculated on the standard basis, after the day of service of the offer to settle. (3) However, if the defendant's offer to settle is served on the first day or a later day of the trial or hearing of the proceeding then, unless the court otherwise orders-- (a) the plaintiff is entitled to costs on the standard basis to the opening of the court on the next day of the trial; and (b) the defendant is entitled to the defendant's costs incurred after the opening of the court on that day on the indemnity basis. (4) If the defendant makes more than 1 offer satisfying subrule (1), the first of those offers is taken to be the only offer for this rule.” [6] Because the plaintiffs have not obtained any judgment this rule is not applicable: per Chesterman J in Emanuel Management Pty Ltd (in liquidation) & Ors v Foster’s Brewing Group Ltd & Ors and Coopers & Lybrand & Ors [2003] QSC 299. -- 3 of 5 -- 4 [7] Mr. Hacketts submission refers to the plaintiffs claim being without merit, and the delay in commencing its proceedings, and the approach it took at trial. [8] All this completely overlooks the fact that ultimately the defendant succeeded on a basis not directly pleaded or argued at trial despite it having filed three defences, the last amended defence being filed by leave at the start of the hearing. [9] It is conceivable that had the defendant pleaded its case correctly from the start, the plaintiff may have been discouraged from continuing. As Mr. Muir submits, the plaintiff succeeded in a number of its central submissions and but for the interpretation point raised by me with the parties after the conclusion of the hearing and before judgment, the plaintiff would have been successful. Although not the basis for Muir JA’s reasoning in Jones v Knobel & Davis Property Services P/L [2008] QCA 105, the interpretation point should have been obvious to any lawyer reading that judgment with the facts of this case in mind. [10] In Interchase Corporation Ltd (in liquidation) v Grosvenor Hill (Queensland) Pty Ltd (No 3) (footnote omitted) McPherson JA considered the history of UCPR 689 and the meaning of the word “event” in the phrase “costs follow the event” in UCPR 689(1) and said: -- 4 of 5 -- 5 “These authorities show that the structure and language of the new Rule 689(1) has not introduced any marked change in the practice governing awards of costs in Queensland. Costs are, as they were before, in the discretion of the court. They follow the ‘event’ which, when read distributively, means the events or issues, if more than one, arising in the proceedings unless the court makes some other order that is considered ‘more appropriate’. It is not by this intended to suggest that there has been a reversion to a regime under which costs of separate issues must now be determined.” [11] Bearing in mind the usual restraint in departing from the usual approach, I am satisfied in this case there should be such a departure. [12] I order the plaintiff to pay 50% of the defendant’s costs to be assessed on the standard basis. I invite the parties to agree on a figure and I will then sign a fixed costs order pursuant to r687(2)(c) without the parties having to appear again. -- 5 of 5 --