DISTRICT COURT OF QUEENSLAND
CITATION:
Halvilla Pty Ltd v Entraco Marine Pty Ltd [2017] QDC 119
PARTIES:
HALVILLA PTY LTD
(ACN 010 495 020)(Plaintiff)
v
ENTRACO MARINE PTY LTD
(ACN 160 058 533)
trading as ROSSHAVEN MARINE(Defendant)
FILE NO/S:
251 of 2015
DIVISION:
Civil
PROCEEDINGS:
Applications
ORIGINATING COURT:
District Court at Townsville
DELIVERED ON:
12 May 2017
DELIVERED AT:
Brisbane
HEARING DATE:
16 March 2017
JUDGE:
Durward SC DCJ
ORDERS:
1. The plaintiff’s application to transfer the proceeding to the magistrates Court is refused.
2. The applications of each of the parties with respect to the costs of the application filed 14 March 2017 are refused. The costs of that application are reserved to the trial Judge
3. The parties have liberty to apply on giving seven (7) days notice.
CATCHWORDS:
PRACTICE & PROCEDURE – PLEADINGS – JURISDICTION – whether proceeding involved claims requiring jurisdiction of the District Court where the monetary claim and counter-claim were less than $150,000.00.
PRACTICE & PROCEDURE – COSTS GENERALLY – SECURITY FOR COSTS – where competing bases for general costs orders – where defendant seeks further Security for Costs order – where the plaintiff’s case has changed with further amended pleadings.
LEGISLATION:
COUNSEL:
Uniform Civil Procedure Rules r 380; Magistrates Court Act 1921 s4(c).
G.J. Houston of Counsel for the plaintiff/applicant
A.L. Raeburn of Counsel for the defendant/respondent
SOLICITORS:
Brad Robins Legal Centre for the plaintiff/applicant
Connolly Suthers Lawyers for the defendant/respondent
The plaintiff owns a recreational motor vessel. The defendant is a ship repairer.
The plaintiff has several claims against the defendant in respect of maintenance work carried out on a motor vessel, including application of antifouling to the hull. The work is alleged to have been defective by reason of failure to exercise reasonable care and skill in the preparation for and application of the antifouling, causing damage to the vessel and consequential loss and expense. The plaintiff claims damages and other relief.
There are several applications. In addition, the plaintiff/applicant (“plaintiff”) made without objection an oral application to transfer the proceeding to the Magistrates Court in Townsville (the jurisdiction matter). The defendant/respondent (“defendant”) also undertook to formalise an oral application regarding a security for costs matter. That was subsequently done.
The jurisdiction matter remains unresolved as does the costs of the applications heard by me and reserved for this judgment. As matters have transpired since the hearing of this and other applications these are now the two issues remaining for resolution by me.
Jurisdiction matter: transfer of proceedings1.
The plaintiff’s claims that are said to have required District Court jurisdiction were, it was submitted, abandoned or became unnecessary in the Further Amended Statement of Claim. In the Defence and Counter-Claim of the defendant there was a declaration sought that it be entitled to retain possession of the subject motor vessel, but the plaintiff submitted that that was no longer necessary because of a previous order of the court to the effect that the motor vessel be returned to the plaintiff conditioned on the plaintiff giving security for the defendant’s Counter-Claim (that is, for some of the claim for payment for repairs to the vessel).
The defendant submitted that the declaratory relief was still sought because that issue required determination despite the practical ‘procedural’ resolution applied by the Court in a previous order and the return of the motor vessel to the plaintiff.
The plaintiff submitted that a proposed Second Further Amended Statement of Claim did not now by its terms require the District Court jurisdiction. However, the defendant submitted that the plaintiff’s claim for damages for loss and use of enjoyment of the motor vessel by reason of the defendant’s alleged unlawful detention of the motor vessel kept the declaration issue alive.
The plaintiff’s response was that this was overcome by the terms of s 4 (c) of the Magistrates Court Act 1921.
Discussion
Whilst the current status of the proceeding is that it is now on the call-over list for the District Court civil sittings in Townsville commencing 24 July, 2017 the resolution of the jurisdiction issue remains extant.
The Magistrates Court Act 1921 relevantly provides:
“4Jurisdiction of Magistrates Courts
Subject to this Act –
(c) every action in which a person has an equitable claim or demand against another person in respect of which the only relief sought is the recovery of a sum of money or damages, whether liquidated or unliquidated, and the amount claimed is not more than the prescribed limit,
may be commenced in a Magistrates Court …”
Does the declaratory relief remain an issue on the defendant’s Counter-Claim, despite s 4 (c)?
The Statement of Claim included inter alia, claims for damages for loss of the use and enjoyment of the motor vessel and claims for Conversion and / or in Detinue. Those claims were continued in the Amended Statement of Claim filed 07 October 2015.
In the Further Amended Statement of Claim the claim for Conversion was omitted, but the claim in Detinue continued, alleging the unlawful retention of possession of the motor vessel by the defendant and the plaintiff’s loss of the use and enjoyment of the motor vessel. Those claims remained extant in the proposed Second Further Amended Statement of Claim filed by leave on 16 March 2017.
The Amended Defence and Counter Claim was filed 19 October 2015. The defence in respect of the claim in Detinue was that the plaintiff was lawfully entitled to retain possession of the motor vessel pursuant to the contract between the parties; and in the Counter-Claim the defendant sought a declaration that it was so entitled.
One might reasonably anticipate that the defendant will continue to seek the declaration in any Further Amended Defence and Counter-Claim that may be filed. That being the case, the jurisdiction issue is not resolved by reference to s 4(c).
2. Costs matter
The application filed on 14 March 2017: the plaintiff sought an adjournment of the trial as a reserve for the April 2017 civil sittings on grounds that the defendant had failed to make disclosure of timesheets of two workers for 23 and 24 February 2015; that an expert witness was to be retained; that an employee who was a material witness was ill and unavailable to give evidence at the trial in April; that further disclosure was required and that the pleadings required amendment. The proceeding had been set down on 15 February, 2017 for trial. Leave to amend pleadings after a trial date is allocated is required pursuant to r380 Uniform Civil procedure Rules 1999 (“UCPR”). Hence Mr Houston submitted that costs of the application should be costs in the cause.
However, Mr Raeburn submitted that the defendant should have its costs thrown away by reason of the proposed Second Further Amended Statement of Claim (which contained substantial amendments and, in his submission, recast the plaintiff’s case, with abandonment of some claims) and there having been a mediation conducted on the basis of previous pleadings, which was now negated. Mr Raeburn submitted that there had been correspondence from the defendant to the plaintiff over time asking (suggesting perhaps) that the plaintiff should amend its pleadings and enquiring if expert evidence was to be called. The implication of his submission was that the defendant did not respond to that correspondence until it engaged an expert and recast its pleadings in the proposed Second Further Amended Statement of Claim.
There had been an application by the plaintiff to dispense with the signature of the defendant on a Request for Trial Date. Mr Raeburn submitted that this had been resisted by the defendant solely on the basis of an unsuccessful application it made to transfer the proceedings to the Queensland Civil and Administrative Tribunal (“QCAT”), the application having been refused previously by the Court because QCAT had no jurisdiction, and not on any other basis.
Discussion
I gave leave pursuant to r380 in the orders made on 03 April, 2017. There is a genuine dispute between the parties as to the costs thrown away by the adjournment and the unsuccessful mediation. Insofar as the latter is concerned, I am not privy to the details of the process and I am unable to say whether the mediation was conducted wholly or partially on the claims that have now been abandoned or amended or whether the process provided a means of subsequent refinement or abandonment of the claims. I am not able to say with any confidence how the plaintiff’s amended pleadings have developed in the context of disclosure or whether it is a case of perhaps a belated response to the defendant’s correspondence to which Mr Raeburn referred.
3. Security for costs matter
The defendant applied for an order for the security for costs paid by the plaintiff to be increased by a further $50,000.00, as a consequence of the plaintiff’s proposed new pleadings. There had been an order previously made by the Court for a sum of $30,000.00 to be provided by way of bank guarantee by the plaintiff.
Mr Houston submitted that the application for an increase in the sum of security for costs had not been made in a timely way, with the implication that the application should not be granted.
Discussion
That matter has recently been resolved by an order made by me on 19 April 2017, the plaintiff providing additional security in the sum of $40,000.00 by bank guarantee or such other form as is satisfactory to the Registrar of the Court.
4. The reserve trial status of the proceeding
The plaintiff sought an adjournment of the reserve trial status of the proceeding on the ground that a witness, Mr Skinner, was unavailable through personal indisposition. The proceeding had been set down as a reserve in the April 2017 civil sittings of this Court in Townsville. Mr Raeburn, however, submitted that the matters that Mr Skinner’s evidence was relevant to were now matters struck out of the proceedings in the proposed Second Further Amended Statement of Claim. Mr Houston submitted that was not the case and that Mr Skinner was an employee of the plaintiff who prepared the vessel for painting by the defendant and he was a necessary witness because of the claim alleging a failure of the antifouling applied to the vessel by the defendant.
Discussion
In the course of the hearing of the application the parties did not finally take issue with the adjournment of the trial as a listed reserve and I vacated the trial date and adjourned the proceeding to the call-over. On 03 April 2017 I formalised those orders.
5. The draft orders
The parties provided two versions of draft orders, although those numbered 1 to 10 were in similar terms. By consent I made the latter orders which left only orders 11, 12 and 13 in the draft document to be determined by me, together with the oral application by the plaintiff to transfer the proceedings to the Magistrates Court in Townsville. The terms of orders 11, 12 and 13 are as follows, albeit that they were expressed differently in the two drafts provided by counsel. I informed the parties that depending on the resolution of those matters they should agree upon a form of consent orders:
“11.The plaintiff pay the defendant’s costs of an incidental to the plaintiff’s application filed on 14 March 2017, the defendant’s costs of the mediation and the defendant’s costs in the action to date (excluding those relating to disclosure by the parties to the date of the Order) to be agreed or assessed on a standard basis;
12.The plaintiff to deliver to the defendant security in the form of a Bank Guarantee for the costs referred to in paragraph (k) above (sic) in the sum of $50,000 on or before 31 March 2017;
13.The security for costs now held by the defendant in the sum of $30,000.00 continue to be held by the defendant as security for its costs in the action pending determination by the Court.”
The application filed on 14 March 2017 was that of the plaintiff and dealt with the filing of the Second Further Amended Statement of Claim and consequential orders with respect to pleadings, further disclosure by each party, production and inspection of any documents disclosed, that the parties have leave to call expert evidence, consequential orders about timing and finally the vacation of the reserve trial listing of the proceeding with consequential orders for a hearing at a future date.
The draft orders 11 to 13 are no longer relevant. The costs issue remains but the jurisdiction issue is not of course referred to.
Discussion
In the course of this matter being reserved, I made a further order (to which I have already referred in another context) on 03 April, 2017 formalising leave to file the application made on 14 March 2017 and, inter alia, leave to file and serve the Second Further Amended Statement of Claim and consequential further pleadings may be necessary.
The Second Further Amended Statement of Claim in fact was filed on 30 March 2017.
On 19 April 2017, I made an order by consent that the plaintiff give additional security for the defendant’s costs of its Defence and Counter-Claim (above that already provided by the plaintiff) in the sum of $40,000.00, to be given by way of a bank guarantee in favour of the defendant or in such other form as was satisfactory to the Registrar of the Court; and that the plaintiff pay the defendant’s costs of the application filed on 23 March 2017 fixed in the sum of $4,500.00 within 28 days.
That order seems now to have resolved the issue of the payment of a further sum by way of security for costs by the plaintiff.
Resolution of outstanding matters
The matter of the other costs appears to remain for resolution as does the matter of the transfer of the proceeding to the Magistrates Court. Hence my brief discussion above of those two matters. I will now determine them.
Jurisdiction matter: transfer of the proceeding 1.
The plaintiff’s pleadings cannot be considered in isolation from the other pleadings. Whilst the plaintiff’s claims in Conversion have now been abandoned, there is still a claim in Detinue for loss which the defendant pleads is the subject to a right that it seeks in the Counter-Claim by way of a Declaration, a matter in respect of which the Magistrates Court does not in my view have jurisdiction. Section 4 (c) of the Magistrates Court Act 1921 does not resolve the matter. The application should be refused.
2.Costs matter
This is not a matter that should be the subject of an order that the costs be costs in the cause. Nor is it possible or appropriate to make the orders Mr Raeburn seeks. It would be premature and presumptive to do so. I will reserve the costs the subject of this application although the parties may be able to resolve these as has been the case with the costs of other applications.
Liberty to apply
If I have been mistaken about the resolution of some of the matters referred to above, I will give the parties liberty to apply to seek further orders.
Draft order
The parties should agree on a new draft order with respect to the two issues I have resolved. The draft order may be provided to me and I will formally make the order upon receipt of it without the necessity of the parties appearing.
Orders
1.The plaintiff’s application to transfer the proceeding to the Magistrates Court is refused.
2.The applications of each of the parties with respect to the costs of the application filed 14 March 2017 are refused. The costs of that application are reserved to the trial Judge.
3.The parties have liberty to apply on giving seven (7) days notice.