Keeley & Ors v Horton & Anor [2016] QCA 253

SUPREME COURT OF QUEENSLAND

CITATION: Keeley & Ors v Horton & Anor [2016] QCA 253

PARTIES: WILLIAM IAN KEELEY LEANNE FAYE KEELEY (first appellants) MARINE WAREHOUSE PTY LTD ACN 066 954 112 (second appellant) v ROBERT WILLIAM HORTON DESLEY MARGARET HORTON (respondents)

FILE NO/S: Appeal No 12298 of 2014 / DC No 3231 of 2007

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal – Further Orders

ORIGINATING COURT: District Court at Brisbane – [2014] QDC 260

DELIVERED ON: 7 October 2016

DELIVERED AT: Brisbane

HEARING DATE: Written submissions dated 5, 6 and 21 April 2016

JUDGES: Holmes CJ and Peter Lyons and Burns JJ / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: The Court orders that: / 1. The respondents pay to the first appellants interest on damages pursuant to s 58 of the Civil Proceedings Act 2011 (Qld) in the sum of $87,725.65; / 2. The respondents pay the appellants’ costs of and incidental to the trial (including reserved costs) to be calculated on the indemnity basis and assessed on the District Court scale of costs; / 3. The respondents pay the first appellants’ costs of and incidental to their application for leave to appeal and the appeal to be calculated on the standard basis; / 4. The second appellant pay the respondents’ costs of and incidental to its application for leave to appeal to be calculated on the standard basis; / 5. The respondents be granted an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) in respect of the first appellants’ application for leave to appeal and appeal.

CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – INTEREST ON JUDGMENTS – TIME FROM WHICH INTEREST RUNS – where the first appellants succeeded on appeal – where in the court below the appellants sought an adjournment on Day 3 of the trial – where the trial resumed after a period of 122 days – where the respondent submitted that the adjournment and subsequent delay were solely attributable to the appellants – where both sides took advantage of the adjournment to remodel their pleadings and gather evidence – whether interest should be awarded from the date when the cause of action arose or from the date when the proceeding commenced – whether the period of 122 days should be excluded from the calculation of interest / PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – INTEREST ON JUDGMENTS – RATE – where the first appellants succeeded on appeal – where the respondent submitted that a rate of five per cent per annum more closely reflected interest rates over the period of the claim – where no evidence was advanced regarding the prevailing commercial rates of interest over the period in question – whether interest should be awarded at a rate other than the rates prescribed for default judgments / PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – OFFER OF COMPROMISE OR OFFER TO SETTLE OR CONSENT TO JUDGMENT PURSUANT TO RULES – GENERALLY – where on 23 December 2010 the appellants made a formal offer under Part 5 of Chapter 9 of the Uniform Civil Procedure Rules 1999 (Qld) – where the respondents did not accept the formal offer to settle – where the first appellants subsequently succeeded on appeal and obtained a judgment no less favourable than the offer – whether the first appellants should have their costs of trial on an indemnity basis – whether another order for costs is appropriate in the circumstances / APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – where the appeal succeeded on questions of law – where the respondents’ submissions in the court below were fairly arguable and not unreasonably advanced – whether the Court should exercise its discretion to issue the respondents with an indemnity certificate pursuant to the Appeal Costs Fund Act 1973 (Qld) with respect to the costs of the first appellants’ application for leave to appeal and the costs of appeal / Appeal Costs Fund Act 1973 (Qld), s 15, s 16 / Civil Proceedings Act 2011 (Qld), s 58, s 59 / Supreme Court of Queensland Act 1991 (Qld), s 17 / Uniform Civil Procedure Rules 1999 (Qld), r 283, r 353, r 355, r 360, r 681, r 684 / Batchelor v Burke (1981) 148 CLR 448; [1981] HCA 30, cited / BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd [2015] 1 Qd R 228; [2013] QCA 394, cited / Calderbank v Calderbank [1975] 3 All ER 333, followed / [2003] 1 Qd R 651; [2002] QCA 359, cited / [2016] QSC 120, cited / [1935] 1 KB 354, cited / [2016] QCA 21, cited / (1977) 136 CLR 145; [1977] HCA 7, cited / (1985) 157 CLR 215; [1985] HCA 75, cited / (2000) 201 CLR 321; [2000] HCA 42, cited / [2013] QCA 161, related / [2003] 1 Qd R 26; [2001] QCA 191, cited / [2014] QCA 23, cited / [2016] QCA 68, related / (2010) 241 CLR 390; [2010] HCA 32, cited / [1980] Qd R 149, cited / *]* (1982) 151 CLR 590; [1982] HCA 59, cited / (1954) 92 CLR 190; [1954] HCA 65, cited / [2015] QCA 77, cited / (1988) 165 CLR 306; [1988] HCA 48, cited / [1989] 1 Qd R 678, cited / (2014) 252 CLR 331; [2014] HCA 31, cited / [2009] 2 Qd R 287; [2008] QCA 398, considered

COUNSEL: D A Skennar for the appellants / K C Kelso for the respondents

SOLICITORS: Files Stibbe Lawyers for the appellants / Colville Johnstone Lawyers for the respondents

1. HOLMES CJ: I agree with the reasons of Burns J and the orders he proposes.

2. PETER LYONS J: I have had the advantage of reading in draft the reasons for judgment of Burns J. I agree with them and the orders proposed by his Honour.

3. BURNS J: On 22 March 2016, the first appellants were granted leave to appeal from a judgment pronounced in the District Court at Brisbane on 24 November 2014,¹ and their appeal was upheld.² In allowing the appeal, the Court varied an award of nominal damages made in the first appellants’ favour at first instance by increasing it to the sum of $96,367.³ The second appellant also sought leave to appeal, but that application was refused.⁴

4. After setting aside the costs orders made in the court below,⁵ the Court directed the parties to file and serve written submissions regarding the interest to be allowed with respect to the increased award of damages, the costs of the trial, the costs of the applications for leave to appeal and the costs of the appeal. The respondents have also applied for the issue of an indemnity certificate pursuant to the Appeal Costs Fund Act 1973 (Qld) with respect to the costs of the application for leave to appeal and the costs of appeal.

Interest

5. The first appellants submit that interest should be allowed on the damages as varied from the date when the cause of action arose (4 January 2005) to the date of the principal judgment of this Court (22 March 2016). Using the rates prescribed over that period for default judgments under r 283 of the Uniform Civil Procedure Rules 1999 (Qld),⁶ the total amount sought by way of interest is $95,677.01. The respondents on the other hand contend that, save for a period of 122 days,⁷ interest should be allowed from the date when the proceeding commenced (9 November 2007) to the date of judgment in the court below (24 November 2014). They further contend that interest should not be allowed in accordance with the rates prescribed for default judgments but, instead, at a rate of five per cent per annum so as to “more closely [reflect] interest rates over the period of the claim”.⁸ Given these competing contentions, it is necessary to consider both the period over which interest should be awarded and the rate to be applied.

6. By s 58 of the Civil Proceedings Act 2011 (Qld), interest may be included in the amount for which judgment is given at the rate the court considers appropriate for all or part of the amount and for all or part of the period between the date when the cause of action arose and the date of judgment. Once pronounced, the judgment (including any interest) becomes a money order in relation to which interest will be payable under s 59 of the Act and in accordance with the rates prescribed by practice directions issued under the Supreme Court of Queensland Act 1991 (Qld) unless the court otherwise orders.⁹ Where, as here, a judgment in favour of a plaintiff at first instance is varied, interest pursuant to s 59 will be payable under the judgment as varied from the date of the original judgment.¹⁰ The position will be different where this Court sets aside a judgment at first instance and itself gives judgment in a particular amount because, in any such case, interest under s 59 will ordinarily run from the date of the judgment of this Court.¹¹

7. That made clear, the respondents did not put forward any reason why interest pursuant to s 58 of the Civil Proceedings Act should not run from the date when the cause of action of arose but instead be deferred to the date on which the proceeding was commenced. For example, it was not argued that the first appellants unreasonably delayed in the prosecution of their claim. Furthermore, although s 58 confers a broad discretion to award interest including the period over which it is awarded, the purpose of the provision is to compensate a successful plaintiff from being kept out of the judgment sum; it is not to punish an unsuccessful defendant. Here, the issued capital in the second appellant was purchased by the first appellants using personal and institutional borrowings, cash reserves and voluntary superannuation contributions they withdrew for that purpose. As the principal judgment explains, the breach by the respondents of the earnings warranties resulted in the first appellants paying too much. In such circumstances, the first appellants should be compensated by an award of interest on the amount of the overpayment running from the date when the cause of action arose, and not at some later date.

Trial costs

15. In the court below the primary judge ordered that the respondents pay 10 per cent of the appellants’ costs of the proceeding (to be assessed on the Magistrates Court scale for amounts under $751) and that the appellants pay 90 per cent of the respondents’ costs of the proceeding.²⁹ Applying r 684 UCPR, his Honour attributed 10 per cent of the costs of the proceeding to the part of the case that concerned the claim warranties and held that the appellants should be regarded as the successful parties in respect of that part. As to the balance 90 per cent, his Honour attributed that to the part of the case that concerned the earnings warranties and held that the respondents had been successful with respect to that part.³⁰ As to the costs reserved on the adjournment of the trial on 18 October 2012, his Honour considered that they should follow the event, that being the respondents’ success on the part of the claim based on the earnings warranties.³¹

16. By reason of the first appellants’ successful appeal, they (together with the second appellant) are now to be regarded as having been wholly successful in the proceeding. The appellants therefore submit that the trial costs should follow this event and that is of course the default position under r 681 UCPR. Although the respondents do not submit otherwise, they maintain that the appellants should be ordered to pay the costs thrown away by the adjournment of the trial.³² These were said to include the costs of the first three days of trial along with the costs incurred in responding to the appellants’ amended pleadings and supplementary expert evidence. However, for the reasons earlier expressed, it is clear that both sides benefited from the adjournment.³³ In any event, the evidence given over the first three days of trial was not “thrown away”; it was supplemented by the evidence given on the resumption of the trial.³⁴ In my opinion it should be ordered that the respondents pay the appellants’ costs of and incidental to the proceeding in the court below, including the costs reserved on the adjournment of the trial, assessed on the District Court scale.

17. The next question concerns the basis on which such costs are to be calculated. The appellants made an open offer to settle their differences with the respondents prior to the commencement of the proceeding by letter dated 23 February 2006. It called on the respondents to pay $63,000 (including $3,000 in costs). The proceeding was then commenced on 9 November 2007 and, on 23 December 2010, the appellants made a formal offer under Part 5 of Chapter 9 UCPR. By that offer, the appellants offered to settle the entire proceeding on payment by the respondents of $90,000 as well as the appellants’ standard costs up to and including 22 December 2010.

“360****Costs if offer by plaintiff

(1)If—

(a)the plaintiff makes an offer that is not accepted by the defendant and the plaintiff obtains an order no less favourable than the offer; and

(b)the court is satisfied that the plaintiff was at all material times willing and able to carry out what was proposed in the offer;

the court must order the defendant to pay the plaintiff's costs calculated on the indemnity basis unless the defendant shows another order for costs is appropriate in the circumstances.

(2)If the plaintiff makes more than 1 offer satisfying subrule (1), the first of those offers is taken to be the only offer for this rule.”

19. The respondents did not accept the formal offer to settle and the appellants have now obtained a judgment no less favourable than the offer. The appellants were at all material times willing and able to carry out what was proposed in that offer.³⁷ As such, by r 360(1) UCPR, the respondents must pay the appellants’ costs calculated on the indemnity basis unless they show that another order for costs is appropriate in the circumstances. In an attempt to discharge that onus, the respondents submitted that indemnity costs should not be awarded unless it can be established that the rejection of the offer was imprudent or plainly unreasonable.³⁸ However, although that may be the relevant test in the case of Calderbank³⁹ offers,⁴⁰ it is not in the case of offers that do, and the operation of the rule should not be circumscribed in that way.⁴¹

20. In any event, the respondents pointed to the amendment of the statement of claim on two occasions subsequent to the service of the formal offer and the feature that the second appellant had not succeeded to the extent claimed. They also submitted that the appellants never pleaded that the second appellant had no goodwill and otherwise maintained that their argument “on the issue of the assessment of damages cannot be said to be so lacking in merit [as to be] unarguable”.⁴² However, these submissions fail to supply a sufficient reason, whether taken alone or in aggregation, for concluding that an order other than indemnity costs is appropriate. The essential character of the appellants’ complaint never changed; contractual warranties had been breached by the respondents. The appellants were wholly successful in establishing those breaches at trial, and they have now obtained a judgment substantially in excess of the amount for which they offered to settle.

21. I see no reason to depart from the clear terms of r 360 UCPR. The appellants should have their costs of trial on an indemnity basis.

Appeal costs

22. The costs of the applications for leave to appeal and the appeal ought to follow the event. The first appellants succeeded; the second appellant did not. It should therefore be ordered that the respondents pay the first appellants’ costs of and incidental to their application for leave to appeal and their appeal and that the second appellant pay the respondents’ costs of and incidental to its application for leave to appeal, each to be calculated on the standard basis.

23. To the extent that it was submitted on behalf of the appellants that the Court should apportion the costs as between the winning and losing parties,⁴³ if such an approach is available because of the way the respective cases were presented and then argued on appeal, that will be a matter for the parties to agree or, failing agreement, for the costs assessor to determine.

24. The same attitude should be taken to the submission made by the respondents to the effect that the appellants should be ordered to pay the respondents’ costs thrown away by reason of various errors that are said to have been made in the preparation of the Appeal Record Book. In support of that submission, the respondents sought to rely on two affidavits sworn by their solicitor, Mr Colville.⁴⁴ The appellants objected to that material being received by the Court, but then made detailed submissions by way of response and with reference to the affidavit evidence of Mr Colville.⁴⁵ In my opinion the affidavits should be received by the Court because they provide an evidentiary basis for the submissions made on both sides concerning this issue. However, after considering the correspondence passing between the solicitors of the parties exhibited to those affidavits, as well as the submissions respectively made on both sides, I am unpersuaded that a separate order should be made with respect to any costs thrown away in settling the contents of the Appeal Record Book. The matters each has raised can be taken into account on the assessment of the costs of the appeal. None of those matters was so unexpected or unusual that the costs properly incurred cannot be satisfactorily determined by a costs assessor.

Should an indemnity certificate be issued?

25. The respondents apply for the issue of an indemnity certificate pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld) with respect of the costs of the application for leave to appeal and the costs of appeal. By that provision, where an appeal against the decision of a court succeeds on a question of law, the Court may grant to any respondent to that appeal an indemnity certificate and, when granted, the respondent is entitled to be paid from the Appeals Cost Fund an amount equal to the appellants’ and respondents’ costs of the appeal.⁴⁶

26. Here, the primary judge found that the first appellants suffered no loss in consequence of the breach by the respondents of the earnings warranties but, for the reasons previously expressed,⁴⁷ that finding was affected by a number of errors and could not stand.⁴⁸ Each involved a question of law. The first of those errors was holding that the evidence failed to establish what the accountant, Mr Ham, would have done if he had “taken the figures relevant to the loss of the Hy-Drive distributorship” into account.⁴⁹ Such a finding, concerned as it was with the sufficiency of proof of a past hypothetical fact, was an error of law.⁵⁰ The second error came about when the primary judge adopted an incorrect measure of damages for the circumstances of this case, despite having earlier identified the correct measure.⁵¹ In doing so, the primary judge “acted on a wrong principle of law”.⁵² The third error involved the primary judge taking an erroneous view of the scope, and true effect, of the agreement between the parties.⁵³ That, too, was an error of law.

27. It follows that the first appellants’ appeal succeeded on questions of law and, as such, the discretion to award an indemnity certificate is enlivened.

28. The exercise of that discretion was considered by this Court in Sultana Investments Pty Ltd v Cellcom Pty Ltd (No 2).⁵⁴ There, White AJA (McMurdo P and Holmes JA agreeing) said this:

“The power to grant an indemnity certificate is discretionary and there is no appeal from the exercise of the discretion. There are no criteria in the Act for the exercise of the discretion, however, the Full Court in Lauchlan v Hartley⁵⁶ considered how the discretion should be exercised and invited submissions from the Minister charged with oversight of the Fund. Counsel for the Minister conceded that notwithstanding that the submissions of counsel had led to the order or judgment which was later reversed, that should not, of itself, lead to a refusal of a certificate provided that the submissions were reasonably advanced or were fairly arguable. Accordingly, the court gave some guidance about circumstances in which it may be said that the argument advanced was reasonable or that the proposition was fairly arguable. Emphasising that he intended to be neither definitive nor exhaustive Connolly J, with whom Wanstall CJ and Lucas SPJ agreed, said:

“Where a decision is reversed on a point of law it will frequently be the case that both sides of the debate are fairly arguable. Thus a situation in which the authorities are or appear to be in conflict provides an obvious instance in which a resort to the appellate process is justifiable although of course the limits to which it can properly be taken at the expense of the fund must depend on the particular circumstances. Again the proper construction of a particular instrument will often call for a nice balancing of competing considerations so that the opposing views may properly be regarded as fairly arguable. Again, appeals from the exercise of a judicial discretion will frequently turn upon the weight to be given to one or more of the relevant considerations. Yet another instance is provided by the appeal from a value judgment such as those aspects of the assessment of damages which are at large.

A different category of case altogether however is that where the Full Court is of the view that there was no basis on which the judgment or order under appeal could properly have been made. In such a case it is material to consider the part played by the unsuccessful respondent in leading the tribunal to the decision. Where the advocate, barrister or solicitor, invites a decision for which there is no legal warrant, or which is inconsistent in some respect with settled legal principle, the question arises whether his contentions were in truth fairly arguable. If, in the opinion of the Full Court, the legal warrant was arguably available or the settled principle was arguably distinguishable, the respondent may still succeed in obtaining a certificate. If not he will ordinarily fail to obtain the certificate.” [References omitted]⁵⁷

29. In this case, the respondents actively encouraged the court below to the conclusion that the first appellants had suffered no loss and, further, sought to maintain the correctness of that conclusion in this Court. However, the respondents’ contentions were not unreasonably advanced and, going as they did to the measure of damages for breach of the earnings warranty and the calculation of loss, were fairly arguable. As it was, the primary judge rejected their submissions as to the correct measure of damages but acceded to their submissions about the calculation of loss.⁵⁸ This is not a case where the party applying for an indemnity certificate has invited an outcome for which there was no legal warrant. I therefore think that an indemnity certificate should be granted. It must of course be limited to the costs incurred with respect to the first appellants’ application for leave to appeal and appeal.

Orders

30. For these reasons, I propose the following orders (in addition to the orders made on 22 March 2016):

1.The respondents pay to the first appellants interest on damages pursuant to s 58 of the Civil Proceedings Act 2011 (Qld) in the sum of $87,725.65;

2.The respondents pay the appellants’ costs of and incidental to the trial (including reserved costs) to be calculated on the indemnity basis and assessed on the District Court scale of costs;

3.The respondents pay the first appellants’ costs of and incidental to their application for leave to appeal and the appeal to be calculated on the standard basis;

4.The second appellant pay the respondents’ costs of and incidental to its application for leave to appeal to be calculated on the standard basis; and

5.Grant to the respondents an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) in respect of the first appellants’ application for leave to appeal and appeal.

Footnotes

1. Keeley & Ors v Horton & Anor (No 2) [2014] QDC 260 (“Trial Judgment”). ↩

2. Keeley & Ors v Horton & Anor [2016] QCA 68 (“Principal Judgment”). ↩

3. Principal Judgment, [1], [8], [69] and [76]. ↩

4. Ibid [1], [9] and [75]-[76]. ↩

5. Ibid [1], [10] and [76]. ↩

6. Being the rates specified by the practice directions issued from time to time pursuant to s 17 of the Supreme Court Act 1995 (Qld) and, from 1 September 2012, pursuant to s 58 of the Civil Proceedings Act 2011 (Qld). ↩

7. From 19 October 2012 to 18 February 2013. ↩

8. Respondents’ Outline of Argument dated 6 April 2016, par 10. ↩

9. The judgment will attract interest from the date when it is pronounced, but interest on an amount of damages or costs will not be payable if the damages or costs are paid within 21 days of the date of the judgment or assessment, as the case may be, unless the court otherwise orders: s 59(4). ↩

10. See Gould v Vaggelas (1985) 157 CLR 215 at 274 per Gibbs CJ, Wilson, Brennan and Dawson JJ. ↩

11. See, e.g., Mules v Ferguson [2015] QCA 77 at [8]-[9] (referring to Nicol v Allyacht Spars Pty Ltd [No**2] (1988) 165 CLR 306 at 309 and *]* (1982) 151 CLR 590).