Campbell & Campbell v Hyland, Warnick & Ors [1993] QSC 388

State Reporting Bureau TRANSCRIPT OF PR()CEEDINGS (Copyright in this transcript is vested in the Crown. Copies tht.•reof must not be made or sold without the written authority of the Director, State l{epor!ing Bureau.) SUPREME COURT OF QUEENSLAND CI~L JURISDICTION / ' /// ~/ WHITE J No 1478 of 1985 WILLIAM DAWSEY CAMPBELL AND KERRY ANN CAMPBELL (formerly trading under the firm name and style of W D CAMPBELL & COMPANY) and GEOFFREY LEON HYLAND AND LAWRENCE MICHAEL WARNICK (formerly trading under the firm name or style of HYLAND & CO) and LAWRENCE MICHAEL WARNICK AND IAIN CAMPBELL MARSHALL AND LIONEL CEDRIC JULIAN LESS AND GEOFFREY LEON HYLAND (formerly trading under the firm name or style of LEES HYLAND & MARSHALL) and WILLIAM FREDERICK APLIN BRISBANE .. DATE 2 5 I 11 I 9 3 .. JUDGMENT 1 Plaintiffs First Defendants Second Defendants Third Defendant 4th Floor, TIIc l.:m Courts, Gcorgc Slrcct, Brisbane, (). ..J{)()IJ Ji-/cplwnc: (()7) 227 ..J360. 1-:!csimi/e: (07) 227 5532 -- 1 of 9 -- 251193 vss (White J) HER HONOUR: In this matter the quantum of damages for breach of the duty of care owed by the defendants in relation to the failure to seek damages in the Robertson action is $35,000. Interest is allowed on that amount at. 12 per cent per annum 10 from December 1981 to date of judgment, which I round off at $50,000. The interest on the costs paid out by Mr Campbell on behalf of the plaintiff in the Robertson action is allowed at 12 per 20 cent per annum on $9,579.24 from 1 January 1983 to judgment, and is rounded off at $12,500. With respect to costs, I order that the defendant pay the plaintiffs' costs of and incidental of the action, to be taxed, including reserved costs Q I was asked to indicate that two counsel were 30 reasonably necessary to the conduct of the plaintiffs' case for the guidance of the taxing officer and I do so. The matter was one of complexity and the presence of both senior and junior counsel was proper and I publish my supplementary reasons in relation to those matters. 40 60 JUDGMENT 2 -- 2 of 9 -- IN THE SUPREME COURT OF QUEENSLAND No. 1478 of 1985 Brisbane Before Justice White [Re Campbell & Or v Hyland & Ors] BETWEEN: AND: AND: WILLIAM DAWSEY CAMPBELL and KERRY ANN CAMPBELL formerly trading under the firm name and style of W.D. CAMPBELL & COMPANY GEOFFREY LEON HYLAND AND LAWRENCE MICHAEL WARNICK (formerly trading under the firm name or style of HYLAND & CO) Plaintiffs First Defendants LAWRENCE MICHAEL WARNICK and lAIN CAMPBELLMARSHALL and LIONEL CEDRIC JULIAN LESS and GEOFFREY LEON HYLAND (formerly trading under the firm name or style of LEES HYLAND & MARSHALL) Second Defendants WILLIAM FREDERICK APLIN Third Defendant FURTHER REASONS FOR JUDGMENT -WHITE J. Judgment delivered 25/11/1993 CATCHWORDS: Counsel: Solicitors: Hearing Date: "Collectibili ty" of damages - Quantum of damages - Costs. Mr K Fleming Q.C. for the plaintiffs Mr J McKenna for the first and second defendants. Mr M Wal ters for the solicitor for third defendant Gadens Ridgeway for the plaintiff Feez Ruthning for the first and second defendants Walters & Co for the third defendant 24 November 1993 -- 3 of 9 -- IN THE SUPREME COURT OF QUEENSLAND No. 1478 of 1985 Brisbane Before Justice White [Re Campbell & Or v Hyland & Ors] BETWEEN: AND: AND: AND: WILLIAM DAWSEY CAMPBELL and KERRY ANN CAMPBELL formerly trading under the firm name and style of W.D. CAMPBELL & COMPANY GEOFFREY LEON HYLAND AND LAWRENCE MICHAEL WARNICK (formerly trading under the firm name or style of HYLAND & CO) Plaintiffs First Defendants LAWRENCE MICHAEL WARNICK and IAIN CAMPBELL MARSHALL and LIONEL CEDRIC JULIAN LESS and GEOFFREY LEON HYLAND (formerly trading under the firm name or style of LEES HYLAND & MARSHALL) Second Defendants WILLIAM FREDERICK APLIN Third Defendant FURTHER REASONS FOR JUDGMENT - WHITE J. Judgment delivered 25/11/1993 Quantum of Damages for Failure to seek Damages in Robertson Trial When judgment was delivered in this action on 26 October 1993 I requested counsel for the plaintiffs to have the value of the herd recalculated in light of the findings made, which findings were not those used as the basis of the calculations either by the plaintiffs' or the defendants' expert witnesses. -- 4 of 9 -- 2 That has now occurred and I was informed that based on those findings of fact set out in the ·reasons for judgment the parties agree that 'the value of the herd is $94,991. It then requires me to assess the plaintiffs' damages bearing in mind the matters discussed at pp. 24- 25 of the reasons for judgment, namely, the expected difficulty of recovery against Robertson because of the limited nature of his personal assets and his less than compliant character. In Trewheellar v. Trukeel Pty Ltd, · supra, Thomas J. had a not dissimilar situation where the second defendants had themselves virtually no assets but were found by his Honour to be persons who had access to funds if they chose to gain access, although he recognised that it would have been a difficult and expensive pursuit. His Honour assessed damages at 80% of the assessed quantum (at p. 24 of his reasons). I have dealt with Robertson's worth at p. 22 of my reasons for judgment. There was no ~uggestion anywhere in the evidence that Robertson could have had resort to funds or used as security for borrowings, anything beyond the partnership property. Mr Campbell had fixed on the figure of $30,000 a§ necessary for the reali~ation of his plans. Even though the notional judgment would have been for $94,991, bearing in mind the difficulty, if not impossibility of recovering that amount or anything like it, I am of the view that Robertson wou'ld have been . able to raise about $35, 000 and Mr Campbell, on behalf of the plaintiff in the Robertson action, would ·have··been prepired to accept that figure in settlement. Accordingly,- the quantum of rlamages for breach of the duty of -- 5 of 9 -- 3 c~re owed by the defendants in relation to the failure to seek damages in the Robertson action is $35,000. Interest is allowed on that amount at 12 per cent per annum (see p.33 of reasons) from December 1981 to date of judgment, which I round off at $50,000. Interest on Costs of Robertson's Trial Fees I overlooked awarding interest on the amount paid out by Mr Campbell on behalf of the plaintiff in the Robertson action (p. 36 of reasons). Interest is allowed at 12 per cent per annum on $9,579.24 from 1 January 1983 to judgment and is rounded off at $12,500. When dealing with the quantum of damages for the failure to warn at p. 35 of the reasons I noted that the figure calculated by Mr Calabro to 31 May 1992 was $428,807. When arriving at the loss of $350,000, I took into account the extra amount which must be added on to those calculations of Mr Calabro from 31 May 1992 to judgment although I neglected to say so in the judgment. Accordingly, it would be convenient if the following be inserted. at p. 35 of the reasons for judgment in the eighth line: "That figure must be brought up to date of judgment" and after the word "loss" at the end of that paragraph insert "to date of judgment". Costs The plaintiffs seek their costs including reserved costs of and incidental to the action. The first and second defendants have submitted that the plaintiffs ought not to have their costs occasioned by seeking the consequential losses · set out in -- 6 of 9 -- 4 Schedule "B" to the amended-Statement of Claim (ex. 76), save for those associated_with para. E thereof. The plaintiffs advanced their case for consequential loss on three separate bases in the alternative set out in Schedule ''B". It was the third (para. E) which was successful, see p. 30 et seq. of reasons for judgment. Order 90 r. 3 of the Rules provides relevantly that: "When several.issues whether of fact or law are raised upon a claim or counterclaim the costs of the several issues respectively, both in law. and fact, shall, unless otherwise ordered, follow the event". In Hughes v. Western Australian Cricket Association (Inc) and Ors (1986) ATPR 40 748, Toohey J. considering this question summarised the effect of the various decisions in this area as follows: "1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v. Godfrey (1920) 2 K.B. 47. 2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed. Forster v. Farguhar '('1893) 1 Q.B. 564. 3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, 'issue' does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law. Cretazzo v .· Lombardi ( 197 5) 13 S.A.S.R. 4 at p. 12." His Honour went on to observe: " There is no difficulty in stating the principles; their application to the facts of a particular case is not always easy. Also it is necessary to keep in mind the caveat by Jacobs J. in Cretazzo v. Lombardi at -- 7 of 9 -- • 5 p. 16. His Honour sounded what he described as "a note of cautious disapproval" of ··applications to apportion costs according to the success or failure of one party or the other on the various issues of fact or law which arise in the course of a trial. His Honour commented: 'But trials occur daily in which the party, who in the end ~s wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law. The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case. There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including in particular, the severability of the issues, and no two cases are alike. I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely on his success in those particular issues.' It is relevant, but not conclusive, to consider how much time of the hearing was taken up with evidence and submissions relating to those issues on which the applicant failed. This is not an easy task because much of the evidence bore upon more than one cause of action. Counsel for the applicant did offer some dissection of time spent, by reference to the evidence of particular witnesses and to addresses and noted what he contended was the relatively little time taken up in addresses on those issues on which the applicant failed." This summary was adopted and applied by the New South Wales Court of Appeal in X and Y v. Pal C.A. 40101/90 3 May 1991 (unreported). I do not regard the question of the nature of the consequential loss as an "issue" in the sense in which that expression appears in the Rules, Fuller v. Municipal Tramways Trust [1921] SASR 109 at p. 111. ·Even if it be characterised as an "issue", it is not, in my view, appropriate to deprive the -- 8 of 9 -- 6 plaintiffs of their costs. The witnesses called on those matters also gave evidence about matters upon which the plaintiffs were successful. Accordingly, I order that the defendants pay the plaintiffs' costs of an incidental to the action to be taxed including reserved costs. I have been asked to indicate that two counsel were reasonably necessary to the conduct of the plaintiffs' case for the guidance of the taxing officer. I do so. The matter was one of considerable complexity and the presence of both senior and junior counsel was proper. • -- 9 of 9 --