Dubois v Down [2007] QSC 196

1 [2007] QSC 196 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MCMURDO J No S2176 of 2003 PHILIP JAMES DUBOIS Plaintiff and ROGER HUGH LANDON DOWN Defendant BRISBANE ..DATE 21/06/2007 JUDGMENT -- 1 of 5 -- 21062007 D.1 T1/MJA (McMurdo J) 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This is the hearing on an assessment of damages. The plaintiff has obtained a judgment for damages to be assessed. The plaintiff is the landlord of a premises who granted a lease which was guaranteed by the defendant. When the matter was called today there was no appearance by or for the defendant. The defendant is without legal representation. His former solicitors have previously been given leave to withdraw, and in consequence his address for service became an address where he resides, or apparently resides, at Airlie Beach. Since then all relevant correspondence on behalf of the plaintiff has been sent to him there. By rule 509 sub rule 3 it is provided that when the hearing date for an assessment of damages is fixed the plaintiff must serve notice of the hearing date on the defendant. Because of the particular circumstances here, as I will describe, and the non-appearance by the defendant, it is necessary to say something about the operation of that rule in the present case. These proceedings are related to those which are numbered 5191 of 2003. Chesterman J ordered on 27 August 2003 not only that the plaintiff have judgment for damages to be assessed in the present proceedings, but that the assessment be heard together with proceeding 5191 of 2003. That proceeding was set down for trial on two days; being today and tomorrow. As a result of an agreement between the parties to -- 2 of 5 -- 21062007 D.1 T1/MJA (McMurdo J) 3 JUDGMENT 1 10 20 30 40 50 60 those proceedings the date for hearing was fixed by the Registrar with the approval of the parties to those other proceedings. It seems to me that the effect of the Registrar's doing that was to fix the hearing date for the present assessment because of the order for contemporaneous hearings which had been made by Chesterman J. It is demonstrated by an affidavit by the plaintiff's solicitor that the defendant was informed of that; that is, that the other matter, at least, had been given this as the date for hearing and that therefore his matter would be heard today also. However, what then happened was that the present proceedings were placed on the call-over list and it was at the call-over held on 20 April 2007 that the assessment hearing was, perhaps again, given a hearing date; that is, today's date. Since then, that is since the call-over, several letters have been written by the plaintiff's solicitor to the defendant referring to the trial of this case. Importantly shortly before that call-over the plaintiff's solicitor wrote to the defendant informing him that the plaintiff's intention was to have the hearing dates for this assessment confirmed at the call-over as today and tomorrow. In all these circumstances I am satisfied that the hearing date has been duly fixed and that the plaintiff has served notice of the hearing date on the defendant. Turning then to the assessment, the various components of the claim are established in each case by the evidence. In essence, the plaintiff's claim is that the lessee repudiated -- 3 of 5 -- 21062007 D.1 T1/MJA (McMurdo J) 4 JUDGMENT 1 10 20 30 40 50 60 the lease entitling the plaintiff to damages represented by the rent which would have been received and the outgoings contribution which would have been received over the balance of the term of the lease, less what the plaintiff has received from the use of the premises after the lessee vacated them. The amount of the rent that would have been payable under the lease for the balance of the term is proved to be the sum of $357,682.47. The outgoings contribution is also proved. The variable outgoings as defined by the lease are proved in the sum of $498,451.86. The lessee's agreed proportion, as that term is defined by the lease, is according to the proportion of the area of the demised premises to the net lettable area of the building. Those respective areas are, in turn, proved by the evidence with the result that the agreed proportion of variable outgoings is proved in the sum of $71,936.24. There is also a claim which is made out for $899.30 for the cost of reinstating the premises. From those amounts there should be certain deductions. There should be credit given for the sum of $44,362.79 received from the new tenant and credit for a sum of $3,000 in relation to purchase of some plant and equipment which the plaintiff had bought from the defendant. The defendant should also be credited with the sum of $14,296.50 which was the subject of an earlier judgment, and which has been paid by the defendant to the plaintiff. The result then is a figure of $368,858.72 and that amount ultimately is owed by the defendant according to the terms of his guarantee. -- 4 of 5 -- 21062007 D.1 T1/MJA (McMurdo J) 5 JUDGMENT 1 10 20 30 40 50 60 The plaintiff then seeks interest at the rate of 9 per cent, in effect, on half that amount from 9 December 2002 to 31 May 2006, and on the whole of that amount from 1 June 2006 until today's date. It is appropriate that that interest be awarded. It totals $92,770.49. The remaining issue is that of costs. The lease entitles the plaintiff to indemnity costs, but the plaintiff seeks them only from 11 May 2007 because it was only from that date the plaintiff concedes that there was a valid client agreement pursuant to section 49 of the Queensland Law Society Act 1952. Until that date the plaintiff's costs would be assessed on the standard basis. For these reasons there will be judgment for the plaintiff against the defendant in the amount of $461,629.21 which is inclusive of interest, and it will be ordered that the defendant pay the plaintiff's costs of and incidental to this proceeding to be assessed on the standard basis until 11 May 2007 and on the indemnity basis thereafter. I will initial the draft judgment, which is to that effect and place that with the papers. ----- -- 5 of 5 --