Clemens & Anor v Flower [2006] QCA 296

SUPREME COURT OF QUEENSLAND CITATION: Clemens & Anor v Flower [2006] QCA 296 PARTIES: GRAHAM CLEMENS (appellant/respondent/respondent) DELMA CLEMENS (appellant/respondent/respondent) v MARK FLOWER (respondent/applicant/appellant) FILE NO/S: Appeal No 542 of 2006 DC No 256 of 2005 DIVISION: Court of Appeal PROCEEDING: Application for Extension of Time/General Civil Appeal – Further Order ORIGINATING COURT: District Court at Brisbane DELIVERED ON: Judgment delivered 28 July 2006 Further Orders delivered 15 August 2006 DELIVERED AT: Brisbane HEARING DATE: 2 May 2006 JUDGES: McMurdo P, Williams JA and White J Separate reasons for judgment of each member of the Court, each concurring as to the further orders made FURTHER ORDER: 1. That Graham Clemens and Delma Clemens pay Mark Flower the sum of $54,758.95 2. That paragraph (c) and paragraph (e) of the order of 19 January 2006 in the District Court at Brisbane are set aside 3. That Graham Clemens and Delma Clemens pay Mark Flower’s costs of and incidental to this appeal and the applications for leave, to be assessed on the standard basis 4. That Graham Clemens and Delma Clemens pay the costs of and incidental to the filing of the notice of appeal and the transcript of evidence and three-quarters of Mark Flower’s costs of and incidental to that appeal 5. That Graham Clemens and Delma Clemens be granted an indemnity certificate under s 15(2) Appeal Costs Fund Act 1973 (Qld) in respect of this appeal CATCHWORDS: CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – CUSTOM AND USAGE – CONSISTENCY -- 1 of 4 -- 2 WITH EXPRESS TERMS – where the appellant (builder) and respondents (home owners) entered into a building contract in respect of a dwelling house – the respondent was found to be in breach of the contract by taking possession and control of the property before a final payment to the appellant was due – where the respondents were to pay to the appellant an amount to be determined consistent with the reasons in Clemens & Anor v Flower [2006] QCA 265 – due to disagreement as to the amount to be paid, submissions as to the quantum of that amount and submissions as to costs were provided to the Court Appeal Costs Fund Act 1973 (Qld), s 15 Commercial and Consumer Tribunal Act 2003 (Qld), s 100(8) Tamawood Limited v Paans [2005] QCA 111; [2005] 2 Qd R 101, applied COUNSEL: The applicant/appellant appeared on his own behalf A N Skoien for the respondents SOLICITORS: The applicant/appellant appeared on his own behalf Winchester Young & Maddern for the respondents [1] McMURDO P: This Court gave reasons for granting an extension of time to apply for leave to appeal from an order in the District Court at Brisbane on 6 December 2005; the appeal was allowed to the extent of setting aside par 1 of that order and instead ordering that the respondents, Graham Clemens and Delma Clemens, pay the appellant, Mark Flower, an amount to be determined consistent with the reasons of this Court. The Court also ordered that the parties were to provide the Court with that agreed amount or, in the absence of agreement, submissions as to the quantum of that amount and submissions as to costs. [2] The submissions now provided by the parties suggest that they were unable to agree on a judgment amount. [3] Mr Flower, who was self-represented at the hearing before this Court, filed submissions prepared by solicitors. He submits that, consistent with this Court's reasons, he should have judgment in his favour for damages in the amount of $52,857.76 with interest on that amount at the rate of 14.55 per cent from 21 December 2004 until the date of the further order. He also submits he should be awarded the costs of the applications for leave and the appeal to this Court and that, because the respondents were only partially successful on the District Court appeal, he should have his costs of the District Court appeal or at least a substantial proportion of them. [4] Mr and Mrs Clemens in their submissions seek to revisit their contention made at the hearing in this Court that the learned District Court judge did not deal with their grounds of appeal, which alleged that errors were made by the Commercial and Consumer Tribunal ("the Tribunal") in the quantification of damages so that Mr Flower's claim should be reduced by $57,831.48 rather than the $11,396 reduction recognized in the reasoning of the primary judge and by this Court. They contend that this Court should now determine those issues in their favour and that they, not Mr Flower, should be awarded damages. They also point out that on 22 December 2005 Mr Flower received $15,227.39 by way of part payment of the -- 2 of 4 -- 3 order of the District Court judge of 6 December 2005 and submit that this should be taken into account when assessing interest. They make no submission as to the appropriate interest rate. As to the costs of the District Court appeal, they contend that the orders made by the primary judge as to costs on 19 January 2006 should not be changed. [5] The issues raised by Mr and Mrs Clemens, both at the hearing of this appeal and again in their most recent submissions as to further orders, claiming Tribunal errors in the quantification of damages, were not the subject of a notice of contention under UCPR r 757. For that reason and because, in any case, Mr and Mrs Clemens have not demonstrated they are matters which would justify the granting of leave to appeal, this Court need not further consider those submissions. [6] Consistent with this Court's reasons delivered on 28 July 2006, Mr Flower is entitled to damages in the sum of $52,857.76. The applicable rate of interest (accepted by both the District Court judge and the Tribunal member and not now disputed by Mr and Mrs Clemens) under cl 33 and cl 38 of the contract between the parties was 14.55 per cent. Mr Flower should have interest from the date he terminated the contract with Mr and Mrs Clemens, 12 February 2004. From then until 22 December 2005 (1.8 years) interest should be calculated on $52,857.76 at 14.55 per cent, an amount of $13,843.45. From 22 December 2005 until the date of this order 11 August 2006 (0.6 of a year) interest should be calculated only on $37,630.37 to reflect Mr and Mrs Clemens' payment to Mr Flower of $15,227.39, an amount of $3,285.13. Mr Flower is entitled to interest in total of $17,128.58. The amount of damages to which he is entitled and which is still outstanding is $37,630.37 making a judgment sum of $54,758.95. [7] The learned District Court judge made separate orders on 19 January 2006 as to the costs of the District Court proceedings and as to interest. The order as to interest contained in par (e) should be set aside. The relevant costs order for consideration here is contained in par (c). In the light of Mr Flower's appeal to this Court, Mr and Mrs Clemens were only successful in their appeal to the District Court on a quite limited basis. Taking that into account together with s 100(8) Commercial and Consumer Tribunal Act 2003 (Qld) as interpreted by this Court in Tamawood Limited v Paans,1 I would set aside par (c) of that order and instead order that in the appeal to the District Court against the order of the Commercial and Consumer Tribunal of 21 December 2004 Graham Clemens and Delma Clemens pay the costs of and incidental to the filing of the notice of appeal and the transcript of evidence and three-quarters of Mark Flower's costs of and incidental to that appeal. [8] As the successful appellant, Mr Flower is entitled to the costs of the appeal to this Court including the costs of the applications for leave, to be assessed on the standard basis. [9] Mr and Mrs Clemens apply for an Appeal Costs Fund certificate under s 15 Appeal Costs Fund Act 1973 (Qld). This Court has an unfettered discretion to grant such a certificate where an appeal to this Court on a question of law succeeds. The appellant was successful on a question of law. In the circumstances of this case I am prepared to grant the indemnity certificate sought. 1 [2005] 2 Qd R 101. -- 3 of 4 -- 4 [10] I would make the following further orders: 1. That Graham Clemens and Delma Clemens pay Mark Flower the sum of $54,758.95. 2. That par (c) and par (e) of the order of 19 January 2006 in the District Court at Brisbane are set aside. 3. That Graham Clemens and Delma Clemens pay Mark Flower's costs of and incidental to this appeal and the applications for leave, to be assessed on the standard basis. 4. That Graham Clemens and Delma Clemens pay the costs of and incidental to the filing of the notice of appeal and the transcript of evidence and three-quarters of Mark Flower's costs of and incidental to that appeal. 5. That Graham Clemens and Delma Clemens be granted an indemnity certificate under s 15(2) Appeal Costs Fund Act 1973 (Qld) in respect of this appeal. [11] WILLIAMS JA: For reasons published on 28 July 2006 I would have dismissed the appeal, but the majority of the Court allowed the appeal and sought further submissions from the parties as to quantum and costs. Given the approach of the majority, and the supplementary submissions received from the parties, the resolution of the issues of quantum and costs proposed by the President appears appropriate. In those circumstances I would not dissent from making orders as proposed by the President. [12] WHITE J: I have read the President’s reasons on the question of the quantum of damages, interest and costs in respect of which the submissions were requested and agree with them and the orders which she proposes. -- 4 of 4 --