Deasy Investments Pty Ltd v Monrest Pty Ltd [1996] QCA 466

IN THE COURT OF APPEAL [1996] QCA 466 SUPREME COURT OF QUEENSLAND Appeal No. 1659 of 1996. Brisbane [Deasy Investments P/L & Anor. v. Monrest P/L] BETWEEN: LANESTAR PTY LTD (First Plaintiff) AND: MONREST PTY LTD (Second Plaintiff) Respondent AND: ARAPOWER PTY LIMITED (First Defendant) AND: DEASY INVESTMENTS PTY LTD (Second Defendant) First Appellant AND: BRIAN JOHN DEASY (Third Defendant) Second Appellant ___________________________________________________________________ Fitzgerald P. Pincus J.A. Moynihan J. ___________________________________________________________________________ Judgment delivered 22 November 1996 Further Order delivered 10 December 1996 Separate Reasons for Further Order of each member of the Court, all concurring as to the orders made. ___________________________________________________________________________ ORDER FOR COSTS MADE IN DISTRICT COURT ON 13 MARCH 1996 AGAINST THE APPELLANTS IN FAVOUR OF THE RESPONDENT SET ASIDE, AND IN LIEU, ORDER THAT THE RESPONDENT PAY THE APPELLANTS’ TAXED COSTS OF AND INCIDENTAL TO THE RESPONDENT’S ACTION AGAINST THE APPELLANTS. ___________________________________________________________________________ Counsel: Mr J Griffin QC, with him Mr T Somers, for the appellants. Mr W Sofronoff QC, with him Mr R C Morton, for the respondent. -- 1 of 8 -- Solicitors: Walters & Co. as town agents for MacDonald & Michel for the appellants. Bruce S Dulley as town agents for Carswell & Co. for the respondent. Hearing date: 14 October 1996. -- 2 of 8 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 1659 of 1996 Brisbane Before Fitzgerald P. Pincus J.A. Moynihan J. [Deasy Investments P/L & anor. v. Monrest P/L] BETWEEN: LANESTAR PTY LTD (First Plaintiff) AND: MONREST PTY LTD (Second Plaintiff) Respondent AND: ARAPOWER PTY LIMITED (First Defendant) AND: DEASY INVESTMENTS PTY LTD. (Second Defendant) First Appellant AND: BRIAN JOHN DEASY (Third Defendant) Second Appellant REASONS FOR FURTHER ORDER - FITZGERALD P. Judgment delivered 22 November 1996 Further order delivered 10 December 1996 -- 3 of 8 -- 2 On 22 November 1996, judgment was delivered in this matter allowing the appeal with costs, setting aside the judgment for the respondent, Monrest Pty Ltd, the second plaintiff in the action, and ordering that its claim against the appellants be dismissed. The parties were given leave to file written submissions concerning the proper orders with respect to the costs of the proceedings in the District Court in which the respondent had been given judgment against the appellants. In that proceeding in the District Court, a counterclaim by the appellant, Deasy Investments Pty Ltd, against another plaintiff, Lanestar Pty Ltd, was dismissed with costs to be taxed and Lanestar was awarded nominal damages of $50.00 against the appellants with costs to be taxed. No appeal was brought by the appellants in respect of those orders, and Lanestar was not a respondent to the appeal. The orders for costs in favour of Lanestar against the appellants should stand. The appellants were also ordered to pay the respondent’s costs of its claim against the appellants taxed on a party and party basis up to 3 August 1995, and thereafter on a solicitor/client basis, with no order as to reserved costs. The respondent accepts that the costs order in its favour must be set aside. However, it submits that the appellants should not recover the entire costs of its action against them. The basis of this submission is that there were numerous issues litigated and the appellants succeeded only on the issue of damages. Implicit in that submission is the proposition that the respondent succeeded in relation to all or some of the other issues. While the judgment of Pincus J.A. discussed some other aspects of the respondent’s claim against the appellants, the majority of the Court made no findings in favour of the respondent and decided the -- 4 of 8 -- 3 appeal against it solely on the basis that it failed to prove that loss claimed had been caused by the appellants. In these circumstances, in my opinion, there is no basis for apportioning the costs below or limiting the extent to which the appellants are entitled to such costs. Accordingly, I would order that the order for costs made in the District Court against the appellants in favour of the respondent be set aside and in lieu thereof it be ordered that the respondent pay the appellants’ taxed costs of and incidental to the respondent’s action against the appellants. -- 5 of 8 -- 4 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 1659 of 1996. Brisbane Before Fitzgerald P. Pincus J.A. Moynihan J. [Deasy Investments P/L & Anor. v. Monrest P/L] BETWEEN: LANESTAR PTY LTD (First Plaintiff) AND: MONREST PTY LTD (Second Plaintiff) Respondent AND: ARAPOWER PTY LIMITED (First Defendant) AND: DEASY INVESTMENTS PTY LTD (Second Defendant) First Appellant AND: BRIAN JOHN DEASY (Third Defendant) Second Appellant REASONS FOR FURTHER ORDER - PINCUS J.A. Judgment delivered 22 November 1996 Further Order delivered 10 December 1996 I have read the reasons of Fitzgerald P. dealing with the question of costs and agree with the orders his Honour proposes. I think it desirable to add some observations. There was a counter-claim made, by the first defendant Arapower Pty Ltd, which is not a party to the proceedings in this Court. The order sheet on the file records the judge as having ordered that -- 6 of 8 -- 3 "the defendants pay the plaintiff’s costs of the counter-claim to be taxed". That is presumably a slip, and I take it that when entered the order will record the judge as having made "the first defendant pay the plaintiffs’ costs of the counter-claim to be taxed. We have been invited to change the order relating to the counter-claim, but can hardly do so since Arapower Pty Ltd, against which company the order was made, is not a party to these proceedings. A similar problem arises with respect to the suggestion that we set aside or alter an order for costs made below in favour of Lanestar Pty Ltd. The notice of appeal does not in terms attack the judge’s orders for costs, but only part of the judgment given on 6 February 1996; the notice of appeal was filed before the orders for costs were made, on 13 March 1996. I do not understand the respondent to take any point about that; the parties have addressed submissions to us on the assumption that the order for costs made in favour of the respondent below is in issue in the appeal, but I do not understand that the respondent waives, for itself or Lanestar Pty Ltd, the point that neither Lanestar Pty Ltd nor Arapower Pty Ltd is a party to the appeal. The appellants argued that because of an offer to settle, made on 20 July 1993, consequences favourable to them flowed under r. 118 of the District Court Rules 1968. It is submitted that there should be solicitor and client costs against the respondent; but r. 118 makes no provision for solicitor and client costs against a plaintiff. Further, r. 118 does not seem to contemplate that a single offer to settle may be split up into components; an offer is I think to be considered as a whole and the appellants face the difficulty that Lanestar Pty Ltd obtained and retains a judgment in its favour. IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND -- 7 of 8 -- Appeal No. 1659 of 1996 Brisbane Before Fitzgerald P Pincus JA Moynihan J [Deasy Investments P/L & anor v. Monrest P/L] BETWEEN: LANESTAR PTY LTD (First Plaintiff) AND: MONREST PTY LTD (Second Plaintiff) Respondent AND: ARAPOWER PTY LIMITED (First Defendant) AND: DEASY INVESTMENTS PTY LTD (Second Defendant) First Appellant AND: BRIAN JOHN DEASY (Third Defendant) Second Appellant REASONS FOR FURTHER ORDER - MOYNIHAN J. Judgment delivered 22 November 1996 Further order delivered 10 December 1996 I have read the reasons of the President and Pincus J.A. in respect of the outstanding issue of costs. I agree with them and with the order proposed. -- 8 of 8 --