Booth v Helensvale Golf Club Ltd [1996] QSC 243 [1997] 2 Qd R 141

IN THE SUPREME COURT OF QUEENSLAND Brisbane No. 2005 of 1995 Before the Hon. Mr Justice Mackenzie [Booth v. Helensvale Golf Club Ltd] BETWEEN: WILLIAM RUSSELL BOOTH and SUSAN GRACE BOOTH Plaintiffs AND: HELENSVALE GOLF CLUB LIMITED ACN 009 950 351 Defendant JUDGMENT - MACKENZIE J. Judgment delivered 5 December 1996 CATCHWORDS: Plaintiff discontinued action after the defendant performed certain remedial work -whether an order for costs should be made under 0.91 r16 to overcome the provisions of 0.30rl. Open correspondence by plaintiff on costs of discontinuance - whether the replies were on a "without prejudice" basis - whether the series of letters can be relied upon in an argument on costs of the action - order as to costs of the application. Counsel: J. Batch for applicants. D Cooper for respondent. Solicitors: Dillons as Town Agents for Bernard Ponting & Co for applicants. Prentice as Town Agents for Ffrench Wright & Dennett for respondent. Hearing Date: 28 November, 1996 -- 1 of 6 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane No. 2005 of 1995 Before the Hon. Mr Justice Mackenzie [Booth v. Helensvale Golf Club Ltd] BETWEEN: WILLIAM RUSSELL BOOTH and SUSAN GRACE BOOTH Plaintiffs AND: HELENSVALE GOLF CLUB LIMITED ACN 009 950 351 Defendant JUDGMENT - MACKENZIE J. Judgment delivered 5 December 1996 The summons asks for leave to discontinue the action and for an order that the defendant pay the plaintiffs' costs of and incidental to the action to be taxed. It was common ground by the time of the hearing that leave to discontinue was not necessary. The matter proceeded only in relation to the question of costs. The applicant plaintiffs' claim was under O.91, r.16. That rule provides that when for any reason the further prosecution of any cause or matter becomes unnecessary except for the purpose of determining by whom the costs of the cause or matter should be paid, an application may be made to determine the question. Mr Cooper for the respondent defendant submitted that O.91, r.16 had no application to a case such as the present one. He submitted that the relevant provision was O.30, r.1 which permits a plaintiff at the point that this action has reached to discontinue, with an obligation that the plaintiffs pay the defendant the costs of the action. It was submitted that O.91, r.16 was not available. The -- 2 of 6 -- 2 decisions in Gold Coast City Council ex parte Raysun Pty Ltd [1971] QWN 13, Austcorp Finance and Leasing Pty Ltd v. Thomas (1420 of 1990, Master White, unreported, 25 July 1991) and Compadres Australia Pty Ltd v. Waterfront Place No. 2 Pty Ltd, (Writ No. 599 of 1995, Mackenzie J, unreported, 25 August 1995), are examples of cases where in varying fact situations an application under O.91, r.16 has been entertained. Notwithstanding Mr Cooper's arguments on the point I will proceed on the basis that it is competent to bring an application under O.91, r.16 where it is proposed to discontinue a cause or matter which has become unnecessary except for the purpose of determining by whom the costs of the cause or matter should be paid. That is obviously to be distinguished from a case where a plaintiff merely decides not to proceed. The test of the action becoming "unnecessary" must be complied with as a threshold issue before an order under O.91, r.16 can be made. Turning now to the principles to be applied, in Compadres I adopted and applied propositions derived by Hill J in Australian Securities Commission v. Aust-Home Investments Ltd (1993) 11 ACSR 136 to the following effect: "(a) where neither party desires to proceed with litigation the court should be ready to facilitate the conclusion of the proceedings by making a costs order; (b) it is appropriate to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them; (c) that in some cases it may be appropriate to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation; and (d) that while the fact that interlocutory relief may have been granted may be taken into account that fact carries no implication as to the ultimate merits of the case but does ordinarily suggest that there was an arguable issue to be tried between the parties and that the balance of convenience favoured the grant of that relief." I apply those in this case. Turning to the merits of the case, the facts are that within a short time of the applicants' -- 3 of 6 -- 3 purchasing a residence adjoining the fourteenth fairway of the defendant's golf club they became concerned at the number of golf balls landing on their property particularly in the area used by them for recreational purposes. After a relatively lengthy process of correspondence and consideration by the respondent of what it might do to alleviate the problem, an offer was made in December 1995 to build a wire screen of particular dimensions near the tee to limit the opportunity for balls to be misdirected into the plaintiffs' premises. That work began but was not completed to the extent originally envisaged because, it appears, the defendant was advised that making it of the length originally envisaged would create other problems, principally because balls striking the screen may fly in random directions, causing risks to players and causing balls to go into premises which presently did not suffer from the intrusion of golf-balls. Then on 9 January 1995 an offer was made to construct a chain-mesh barrier-fence to a height of approximately 20 feet adjacent to the rear boundary of the plaintiffs' property. That was rejected, at least for the time being, on the basis that it would not be "aesthetically pleasing" and because of the original proposal for a longer fence near the tee than had been built and the possibility of reducing the hole to a par 3. On 11 January 1995 the plaintiffs were advised that a management plan incorporating a range of options designed to eliminate the risk to properties along the 14th hole had been discussed by the golf club committee. The next correspondence appears to have been a letter of 26 September 1995 from the plaintiff's solicitors which referred to further golf balls landing in the plaintiffs' property and threatened to issue proceedings for injunctive relief immediately and without further notice if any further golf balls entered the property. On 27 September 1995 that letter was replied to in terms which included a suggestion that the only solution was the erection of a tall fence immediately at the back of the plaintiffs' property. The committee of the golf club on 23 October 1995 contacted their solicitors and instructed them to offer the construction of such a fence. However the proceedings were commenced on 24 October 1995 before that was communicated. After the hearing had -- 4 of 6 -- 4 proceeded for some time before the chamber judge an undertaking was given and accepted that involved construction of a chain-mesh fence across the rear boundary of the plaintiffs' property by the defendant in a position and in accordance with dimensions as recommended by a golf professional. It appears that that did not bring to an end the intrusion of golf balls and the matter came on again before de Jersey J. on 27 November 1995 with a view to reopening the matter. However de Jersey J, while noting that there were still matters of concern, also observed that certain further works proposed would take time. He refused to reopen the matter and merely ordered a speedy trial of the action. I have set out the history of the matter in some detail to demonstrate that a proposal which was the basis of the initial disposition of the motion for injunction had been proposed some time prior to the commencement of proceedings. Although it ultimately did not work as satisfactorily as hoped the fact that the proceedings have now become unnecessary is a consequence of the undertaking of the other work in the form of realigning the fairway. I am satisfied that the action has become unnecessary and that if the plaintiffs now wish to discontinue the action, the appropriate order for costs is that each party should bear its own costs of the action. As to the costs of the present application, certain correspondence was exhibited in the respondent's case. Mr Batch objected to such evidence on the basis that the offers were "without prejudice". He submitted that if a party wished to take advantage of an offer in relation to costs, where the correspondence was otherwise "without prejudice" it was necessary to expressly say that the offer was "to be relied on" on the issue of costs. (Calderbank v. Calderbank 1976 Fam 93; Cutts v. Head (1984) 1 Ch 290; AMEV Finance Ltd v. Artes Studios Thoroughbreds Pty Ltd (1988) 13 NSWLR 486). The situation in this case is that the question of costs if the action was discontinued was raised in a letter of 30 April 1996 from the plaintiffs' solicitors. The last paragraph said that the letter was written on an open basis. A response was made in a letter of 11 June 1996 which -- 5 of 6 -- 5 proposed that each party meet their own costs. This proposal was repeated on 31 July 1996, and 29 October 1996, after the present application had been filed. In my view, the issue of costs was raised in open correspondence by the plaintiffs' solicitors, in all probability for tactical reasons. There is no reason to cloak the reply with "without prejudice" privilege in those circumstances. Viewed in that way, the matter could have been settled without the present application having to be made. The applicants are ordered to pay the respondent's costs of and incidental to the summons (including reserved costs) to be taxed. -- 6 of 6 --