Frederick W Nielsen (Canberra) Pty Limited v Pdc Constructions (ACT) Pty Limited and National Capital Development Commission [1988] ACTSC 64 (10 November 1988)

SUPREME COURT OF THE ACT

FREDERICK W. NIELSEN (CANBERRA) PTY. LIMITED v. P.D.C. CONSTRUCTIONS (A.C.T.)
PTY. LIMITED and NATIONAL CAPITAL DEVELOPMENT COMMISSION
S.C. No. 1652 of 1983
Costs

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Costs - appeal from decision of Registrar - application for order to furnish particulars dismissed by consent after some particulars supplied during course of hearing - most of applicant's costs ordered to be paid by appellant - whether costs should have followed the event.

HEARING

CANBERRA
10:11:1988

Counsel for the Plaintiff: Mr P. Dodson

Solicitors for the Plaintiff: Gillespie Jones & Co.

Counsel for the 1st defendant: Mr R. Clynes

Solicitors for the 1st defendant: Minter Ellison

ORDER

1. The appeal commenced by notice of motion of 29 July 1988 be dismissed.

2. The plaintiff pay three quarters of the firstnamed defendant's costs of the application before the Registrar commenced by notice of motion dated 26 February 1988 in any event apart from the costs associated with the appearance of the firstnamed defendant on 29 February 1988 and 5 April 1988 in respect of which no order as to costs is made.

3. The plaintiff pay the firstnamed defendant's costs of the appeal.

DECISION

This is another appeal from a decision of the Registrar in this litigation brought by way of notice of motion dated 29 July 1988. The decision appealed against was handed down by the Registrar on 25 July 1988. The decision of the Registrar was that an application by the defendant for further and better particulars of the plaintiff's further amended statement of claim be dismissed and that the plaintiff pay three quarters of the defendant's costs of that application. The only question pursued before me was confined to the order as to costs.

2. Back in 1987, on 29 April, the defendant sought further particulars of paragraph 8 of the further amended statement of claim as it then stood. There have been amendments since then, but as I understand it, none of those amendments are relevant to the issue to be decided by me. On 6 July 1987 the plaintiff's solicitors replied to the request furnishing certain particulars but asserting that the defendant was not entitled to the remaining particulars sought. There was correspondence between the parties, some of it of a very argumentative nature, and it is not necessary to refer to that correspondence in detail except to say that on 22 February 1988 the defendant's solicitors wrote reiterating their request for certain outstanding particulars. For whatever correct or incorrect reason, the plaintiff's solicitors declined to furnish such outstanding particulars. They gave their reasons and expressed their attitude in their letter of 26 February 1988.

3. On 26 February 1988 the defendant took out a notice of motion which subsequently came before the Registrar. The nature of the application and the issues it raised as well as the history of the matter are succinctly set out in the reasons of the Registrar which were handed down on 27 June 1988 prior to the decision appealed against. In those reasons the Registrar discusses a question which was apparently ventilated at length before him, namely whether the plaintiff's claim was for special or general damages. That issue was raised on behalf of the plaintiff in seeking to resist the order sought, and the Registrar correctly concluded it to be irrelevant.

4. During the course of submissions in reply before the Registrar on 7 March 1988, counsel for the defendant attempted to expand the area of particulars sought beyond that which had been requested up to 22 February 1988. The Registrar decided that the defendant ought be permitted to seek further particulars and directed the defendant to deliver to the plaintiff's solicitors a minute of the further particulars sought. That direction was complied with by a minute dated 10 March 1988 and the matter came on for further argument before the Registrar on 20 June 1988. The Registrar reserved his decision and on 27 June 1988 stated his further findings and rulings. The Registrar reached the conclusion that the defendant had not been furnished with enough material to enable it to know the case it had to meet and to assist it in computing an appropriate amount to pay into court if it wished to take that course. In his published reasons the Registrar gave some guidance as to what should be contained in adequate and appropriate particulars. The Registrar concluded his remarks at that stage by saying as follows:
"However, it seems to me that, as a result of the

insufficiency of the particulars provided to
date, the first defendant may have an incorrect
understanding of the way in which the plaintiff
has arrived at its claim. If I am correct, the
particulars sought in the letter of 22 February
1988 from the first defendant's solicitors to the
plaintiff's solicitors, and in the minute of
additional particulars sought, will not bring out
the particulars which should be provided. In
these circumstances, I propose to hear further
submissions from counsel as to the actual
particulars which should be provided."

5. The matter was then stood over. There was further correspondence between the parties as a result of which the defendant's solicitors wrote to the plaintiff's solicitors on 20 July 1988 stating that on the understanding that the plaintiff's claim was confined to actual loss (and not assessed on the basis of what was referred to as the "Hudson" assessment of loss), then the defendant did not require some of the particulars sought in the minute of 10 March 1988.

6. On 25 July 1988 the parties' representatives appeared before the Registrar and the Registrar made an order by consent dismissing the application. The only issue left was the issue of the costs of the application. The Registrar's order as to costs is noted in the court record as follows:

"That the plaintiff pay 3/4 of the firstnamed
defendant's costs of the application in any event
apart from the costs associated with the appearance
of the firstnamed defendant on 29 February
1988 and 5 April 1988 in respect of which no
order as to costs is made."

7. It is that order as to costs which is now under appeal. Clearly, it was inappropriate that the plaintiff appeal against the order that the defendant's application be dismissed.

8. Counsel for the plaintiff argues on the appeal before me that costs should have followed the event. In reply to the obvious answer put on behalf of the defendant, namely, that the particulars were furnished only after a notice of motion had been taken out and the question all but litigated to finality, counsel for the plaintiff submits that the defendant's request for particulars contained in the minute of 10 March 1988 was abandoned once the defendant's advisers realised what they should have realised, according to the argument, right from the start, namely that some of the particulars sought were not appropriate to the plaintiff's claim. To the proposition that some of the particulars sought in the minute of 10 March 1988 were furnished by the plaintiff, counsel for the plaintiff submits that those particulars should have been requested before the notice of motion was taken out, and if they had been, then the plaintiff would have been happy to supply those particulars and the notice of motion would have been unnecessary.

9. However, this argument put on behalf of the plaintiff is in the face of the Registrar's ruling expressed in his reasons of 27 June 1988 to which I have made reference. The Registrar considered that the particulars sought in the letter of 22 February 1988 and in the minute of 10 March 1988 would not be adequate to have the case properly prepared for hearing and for that reason he proposed to hear further submissions as to the exact particulars which should be provided. The fact that the defendant later abandoned its claim to some of the particulars sought in the minute of 10 March 1988 does not, in my view, affect the ruling of the Registrar on this issue.

10. Although the appeal before me is a hearing de novo (Order 75 Rule 35), the only order appealed from is the order for costs. Otherwise the Registrar's findings and rulings stand undisturbed; alternatively, I am not convinced that they should be set aside. It was not contended that the Registrar fell into any error of fact or law and there is certainly no manifest error.

11. Clearly, most of the time taken up at the hearing before the Registrar was taken up with matters with which I am not concerned, for example, the question whether the claim was a claim for general or special damages. The Registrar was clearly of the view and, in my opinion, correctly so, that the particulars furnished by the plaintiff prior to 27 June 1988 were inadequate and that if there was any misunderstanding by the defendant of the nature of the plaintiff's claim, that situation was at least contributed to by the insufficiency of the particulars furnished. In my view, the defendant was entitled to a costs order substantially in its favour. The order of the Registrar that the plaintiff pay three quarters of the costs of the defendant was an eminently sensible and reasonable one.

12. The appeal is dismissed. The plaintiff is ordered to pay three quarters of the defendant's costs of the application before the Registrar commenced by notice of motion dated 26 February 1988 in any event apart from the costs associated with the appearance of the defendant on 29 February 1988 and 5 April 1988 in respect of which no order as to costs is made. The plaintiff is to pay the defendant's costs of the appeal from the Registrar.