Coastalstyle Pty Ltd v Proprietors 'Surf Regency' Building Units Plan No 4246 [1993] QSC 241

• State Reporting BureaiJ¥~4! I'?_:,U, ?:> () (J (J TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION THOMAS J No 1336 of 1991 COASTALSTYLE PTY LTD and THE PROPRIETORS "SURF REGENCY" BUILDING UNITS PLAN NO 4246 BRISBANE .. DATE 16/08/93 ORDER 1 rlEVlSED COPiES ISSUED State Reporting Bureau Data2a I ~ I ·3 Plaintiff Defendant 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360 . .Facsimile: (07) 227 5532 -- 1 of 7 -- 160893 HIS HONOUR: In this action I gave judgment on 20 December- 1991 for the specific performance of a deed which bound the parties. The judgment contained a usual additional order for the assessment of equitable or ancillary damages. The matter was taken to the Court of Appeal which in 10 substance dismissed the appeal on 12 October 1992. The Court of Appeal, however, · took the view that it was not necessary to consider the validity of the deed which I had identified, in· view of the existence similar terms which bound the parties. of a later· deed in Clearly the Court of Appeal's decision cont-emplates the specific performance of the later deed, but no substituted order was sought or-made. The matter was subsequently brought back before me essentially·- for the insistence by the plaintiff upon its right to ancillary relief. The plaintiff erroneously, in my view, was at that stage insisting upon the assessment of equitable damages on the basis of my original order. The attitude taken by r the ·respondent was, I think, legally correct. After two appearances, which I thought were unnecessary, and for which the plaintiff was responsible, I amended the order so that'the order upon which the ancillary damages were to be assessed was in · conformity with the reasoning-of the-Court of Appeal. I dealt with the costs of those proceedings on two days adversely to the plaintiff. ori the 'third occasiori'when-the parties appeared before me, namely 25 May 1993, I directed that the parties attempt to mediate the matter. In the event an attempt was made, and I 2 ORDER 20 30 40 50 60 c (~) u -- 2 of 7 -- -----------·----~~--~·····~·-~--~-~----------- 160893 have been informed that the parties came very close to reaching a full agreement, but no binding agreement resulted as a result of the mediation. On 10 August 1993, that is to say less than a week ago, for 10 the first time the plaintiff formulated in specific figures its claim for entitlement under an agreement that had been made pending trial, which will.be mentioned in more detail in a moment. At about the same time the defendant made an open offer to submit to judgment for that sum plus interest. 20 Of course, the plaintiff, through its solicitors, had made many demands for payment of. its entitlement under that ~ agreement during the proceeding months, but it had not articulated its claim in any liquidated form until that time. In the result the parties have agreed and settled all 30 outstanding matters remaining to be determined in this action. 0 () The only issue before me is in relation to costs .of the action and of the subsequent appearances. Pending trial the parties agre~d to suspend the receipt b:y the plaintiff of the manager's salary, but at the same time the plaintiff reserved its rights to claim such salary. The period in question is 20 July 1991 until 20 November 1992, during which no salary was paid. Plainly the plaintiff was entitled to it in the light of the findings in the action, and the actions of the defendant deprived the plaintiff of the benefit of it. 3 ORDER 40 50 60 -- 3 of 7 -- 160893 On the latter date the plaintiff was once again permitted to· perform the role of manager and to receive the weekly entitlement. If this were the ·only claim in issue between the parties, it is difficult· to see how there could have been much difficulty in working: out what had to be paid. 10 However, more ambitious claims were formulated on the plaintiff's behalf. in conjunction with that claim. These claims ·included one for' loss of income under the letting agreement alleging fault on the part of the body corporate in causing the number of tenants to be reduced·and causing a 20 consequential loss of profits for the plaintiff. There was a further claim for diminution in value of the letting business. These claims were opened before me by Mr Brabazon QC on. behalf of the plaintiff and were foreshadowed as·being of the order of $800,000. The question then is what costs, if any, ·is the plaintiff now entitled·· to? Plainly the plaintiff has foregone or ceased to insist upon the other more ambitious claims and the parties have settled upon the figure ·of $63,493 as · the full measure of what I wil1 call the. management claim which: was calculable adcording.to·a fi:ked period and-~ fixed• amount.' It seems to mer· that the "cause" 'that wJs brought back on, 'namely the assessment of ·"ahcillary damages, involved wider issues than this particular claim. By the same token the plaintiff was entitled to bring the matter to Court and has established an entitlement to a judgment in that·sum. 4 ORDER 30 40 50 60 0 0 0 0 -- 4 of 7 -- 160893 So far as the costs of the mediation are concerned such· costs would normally be initially treated as each party' s costs in the cause. However, the cause when the matter was referred to mediation was a larger creature than the claim upon which the plaintiff has succeeded. I do not regard 10 either party as having shown itself to have been successful in the wider comprehension of the cause that was in issue between them. In my view in these circumstances each party should bear its own costs of the mediation and I propose to include that direction for the benefit of the taxing master 20 in due course. ::) The plaintiff's counsel has submitted that the df7fenda.nt was tardy in deciding on how much to pay and that the plaintiff had demanded its entitlements under the agreement. However, 30 the plaintiff was equally tardy in formulating a specific 0 claim and it seems to me that the plaintiff's concentration was perhaps diverted by the existence of the other claims that apparently remained in issue until quite recently. '!'he costs of establishing this claim that now appears to be () quite a simple one would have been considerably less if the plaintiff had confined itself to the claim upon which it has now succeeded. By not doing so. it has caused additional costs to be incurred both by itself and by ·the defendant. It seems to me that the,plaintiff is entitled to some costs but these should be strictly limited to the ~ssue upon which it has succeeded. I accordingly propose to grant the plaintiff the costs of 5 ORDER 40 50 60 -- 5 of 7 -- 160893 the issu·e of the management claim and of obtaining judgment thereon. The dosts of· ·the appearance of 25 May 1993 have been·reserved and I am asked to decide what should happen to these.'· Primarily I regard the appearance of 25 May as being for the purposes'of the mediation and not the maintenance of 10 the present claim. Quite apart from the reference to the mediation; ·wh:ich wa~·a matter that was raised by the Court, th~ pr~sent : claii:n was at· . that stage overshadowed by the othei: more ambitious claims. In my view one Court cippearanc~ is all that should be allowed for the purposes of obtaining · the present j udgmeht. That should be identified a·s · today' s appearance by junior counsel. Accordingly I direct that the plaintiff have the benefit of today's appearance in the calculation of the costs which I have awarded in its favour. An application was made for certification for senior counsel with respect to the appearance of 25 May. That is now academic in that as I regard that appearance as essentially for the purposes of the mediation in which each party will bear its own costs. However, I intimate that were those costs to go to the plaintiff I would not regard the matter as one warranting the taxation of senior counsel's fee. The order will be as follows: by consent judgment for the plaintiff against the defendant for $63,493, together with interest at the rate of 8 per cent per annum. I direct that from the period of 20 July 1991 to 20 November 1992 the interest be paid at 8 per cent on monthly instalments 6 ORDER 20 30 40 50 60 0 0 0 0 -- 6 of 7 -- 160893 outstanding during that period, and from 20 Nove.mber 1992 interest at the said rate on the sum of $63,493. I order the defendant to pay the plaintiff's costs of the issue of the management salary payable pursuant to the management agreement for 20 July 1991 to 20 November 1992, to be taxed. 10 I direct that_the entitlement of the plaintiff to such costs so far as Court appearances are concerned be lirni ted ·to one appearance, namely today's appearance. I further direct that the costs of and incidental of the mediation procedure 20 be regarded as the costs of each party and that there.be no order with respect to such costs in favour of .the·. other :::) party. 30 0 40 (. \ \ ..... .-J 50 so 7 ORDER -- 7 of 7 --