Corbett, Corbett, Nashtown Pty Ltd, Fandoan Pty Ltd & Anor v Wright & Francey Pty Ltd & Ors [1991] QSC 397

TRANSCRIPT . OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Courts , George Street, BRISBANE, 0. 4000 Tel. {ff,, J27.4360 (Copyright in this tra11script is vested in the Crown. Copies thereof must net be made. or sold without the written authority of the Director, State Repordng Bureau.) SUPREME COURT OF QUEENSLAND COMMERCIAL · CAUSES 'JURISDICTION ROBIN AJ .No· 1169 .. of 198.9 ANDREW NEVILLE CORBETT and JOHN LAWRENCE CORBETT. ·, --and · NASHTOWN PTY LTD and: FANDOAN PTY LTD and CORBETT ENTERPRISES and - WRIGHT & FRANCEY PTY LTD and GEOFFREY ALEC WRIGHT GREGORY WILLIAM EICHHORN BRISBANE .. DATE 4/12/91 JUDGMENT 1 REVISED COPIES ,ISSUED . Court Reportina Bureau ·l2~}}ol1 .1( · . j First Plaintiff Second Plaintiff Third Plaintif:!: Fourth Plaintiff Fifth Plaintiff First Defendant Second Defendant Third Defendant -- 1 of 5 -- 10 20 30 40 50 041291 JUDGMENT HIS HONOUR: .I published reasons yesterday afternoon embodying my findings in this matter. They, in a sense, have invited an application by the plaintiffs to re-open their case or to have aμ inquiry held to identify the costs to them of Invincible Ma:,.::.,_na Systems Pty Ltd getting in a sum of $600,000 from CSR Humes Pty Ltd. I have found that that receipt was the outcome of the investments which the plaintiffs made in the business of Off-Shore Marinas., Australia in reliance (among other considerations) on misrepresentations which the defendants either made or have responsibility for. In the end, I am.not persuaded by Mr Bowden that such a course ought to be followed. It seems to me doing so would probably depend on my being satisfied that the plaintiffs have suffered some damage. I cannot feel so satisfied. The plaintiffs themselves are not confident enough of it to press for any proceeding in the nature of an assessment or inquiry or the taking of further evidence without invE3stigation.s thems.elves to ascertain whether that would bring their position as regards damages into credit. That is a commendably sensible attitude. While I have felt some sympathy with the plaintiffs, who claim to have been surprised when the action became concerned with issues of mitigation or with the more specific issue of whether any damage they did suffer had to be reduced by the $600,000': that sympathy is largely dissipated by .the. contents of Exhibit .161 .which Mr ,Car,rigan tende:i;ed this morning. His instructing sol.icitors wrote to 10 20 30 40 so 60 60 .Govt. Printer, Old. -- 2 of 5 -- 1 ' 0 0 0 0 :) .041291 JUDGMENT the plaintiffs' solicitors on 1 October 1991 indicating their having become aware during September of the tr~nsaction with CSR Humes Pty Ltd. They stated inter a lia, "We consider that-. the documentation is relevant to the facts in issue in t~is litigation, as it goes to quantum and the allegations of misrepresentation." It is perhaps unfortunate that the pleading amendments foreshadowed by the letter which· were subsequently formulated and which were allowed by me to be made at the beginning of the trial did not raise the issue in this neat way. However, I consider that paragraph 16 which found itself in the defendants' pleading in this way did fairly raise the issue on balance. The defendants' obligation was to plead facts rather than the legal consequences of facts. "There is no magic in the use of the word "mitigation" or any variant which the defendants ·eschewed. In the light of the correspondence tendered this ·morning, I consider that the plaintiffs' submission that they were surprised by some change in the nature of the action at trial cannot be sustained. Throughout the trial the plaintiffs with some fanfare announced that they were not going to embark upon the exercise of showing the cost to them of "mitigation" if an analysis along those lines was appropriate. No application was made for evidence in rebuttal to be received o:t for· evidence to be . presented as it might have been even during addresses. In my view, the plaintiffs were alerted to the danger which receipt of the $600,000 placed them in during t:he trial and it is too late~ Govt. Printer, Qld. 3 10 20 30 40 50 60 -- 3 of 5 -- 10 20 041291 after reasons have been given, for the plaintiffs to attempt. to resurrect the situation. The result is that the plaintiffs' action has to be dismissed and that the defendants are entitlec:L:to the general costs of the action to be taxed, if ordinary rules apply. "As my reasons · indicate, - this· an action in which they should not. I agree with Mr Bowden that the action could have been -disposed of in a few days. if limited to the issue (the proof of damage) on which the defendants have succeeded. Mr Carrigan has submitted that the reference ,to costsof issues in Order 91 rule 3 is a reference ~o causes of action and that his clients ought -to receive all of thei~ costs on the.basis that the plaintiffs in the end established no cause of action. I would not 30 construe "issues" in the rule in that way but in the broa<i.er way indicated by Bowen Lord Justice's statements in Forl;:iter v. Farquhar (1893) lQB 564, 569 - 570 which Thomas J (Mackenzie 40 so 60 J agreeing) appears to me to have endorsed in Culbert v. Beard (Full court, 4 October 1991, ~ppeal no. 25 of 1991 unreported) . Accordingly, this appears to me a -proper case in which to except from the general order for costs which the defendants are entitled to the costs attributable to all engineering issues - which may be summarised as those dealt with by the witnesses Gallagher, Glynn, Abraham and Patterson - and also the issues to do with the making of· representations. In respect of those two groups of issues, in my view it is appropriate to order that the defendants pay the plaintiffs Govt. Printer, Old. tf- . L 10 20 30 40 so 60 -- 4 of 5 -- l • 0 0 041291 JUDGMENT the costs relating to the determination of them, such costs to be taxed. It may be that the parties would prefer to av0:td the complex taxation which such an arrangement would give rise to and be prepared to accept - without, of course, limiting .i their ability to institute an appeal - some more arbitrary way of dealing with the costs issue. What I have just proposed has little practical appeal but it seems to be required by the operation of the ordinary rules. The judgment of the Court will be that the plaintiffs' claim is dismissed with costs, excepting the defendants' costs referable to any engineering issues and issues to do with. the making of representations, which the plaintiffs are not :o to pay. The costs of those issues are to be taxed separately and paid by the defendants to the plaintiffs. 0 0 D Govt. Printer, Qld. 5':. 10 20 30 40 50 60 -- 5 of 5 --