Re: GPS Power Pty Ltd

[2001] QSC 35

SUPREME COURT OF QUEENSLAND

CITATION:

Re: GPS Power Pty Ltd & Ors v Gardiner Willis Associates Pty Ltd [2001] QSC 035

PARTIES:

GPS POWER PTY LTD ACN 009 103 422
GPS ENERGY PTY LTD ACN 063 207 456
SUNSHINE STATE POWER BY ARBN 062 295 425
SUNSHINE STATE POWER (NO 2) BV
ARBN 063 382 829
SLMA GPS PTY LTD ACN 063 779 028
RYOWA II GPS PTY LTD ACN 063 780 058
YKK GPS (QUEENSLAND) PTY LTD ACN 062 905 275
(plaintiffs)
and
GARDINER WILLIS ASSOCIATES PTY LTD
ACN 067 249 914
(defendant)

FILE NO/S:

Appeal No 3699 of 2000
SC No 1589 of 1996

DIVISION:

Trial Division

PROCEEDING:

Costs order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 February 2001

DELIVERED AT:

Brisbane

HEARING DATE:

6 June 2000

JUDGE:

Mackenzie J

ORDER:

1.  That the plaintiffs recover interest on the judgment sum of $40,890.65 at the rate of 6% per annum calculated from 22 March, 1996.
2.  That the defendant pay the plaintiffs' costs of and incidental to the proceedings on the Supreme Court scale, on a standard basis.

CATCHWORDS:

PROCEDURE – COSTS – SCALE OF COSTS – APPLICABILITY OF RULES - order for costs – whether applicable rate of interest should be assessed at commercial rates.

Ausminco Mining Equipment Suppliers Pty Ltd v Liwood Pty Ltd (Appeal 2120 of 1997, 19 December, 1997, unreported)
Interchase Corporation Limited v ACN 019 087 573 Pty Ltd [2000] QSC 13
Serisier Investments Pty Ltd v English (1989) 1 QdR 678

COUNSEL:

S C Williams QC with M J Liddy for the appellants
P H Morrison QC with D G Clothier for the respondent

SOLICITORS:

Gadens Lawyers for the appellants
Corrs Chambers Westgarth for the respondent

1. MACKENZIE J:  This is an order for costs in a matter heard some time ago.  At the delivery of judgment, the parties were given liberty to put in written submissions as to costs.  There was a delay in this regard and, since the primary question had gone on appeal to the Court of Appeal, the issue was not pursued by me.

1. The appeal has now been dismissed and all submissions received.  The only issue in dispute is the applicable rate of interest.  The successful plaintiffs claimed interest on the judgment sum of $40,890.65 at 10% per annum.  The defendants claim that the rate should be 6%, in reliance on Interchase Corporation Limited v ACN 019 087 573 Pty Ltd [2000]QSC 13.

1. In Interchase, White J referred to Serisier Investments Pty Ltd v English (1989) 1 QdR 678, 680, and Ausminco Mining Equipment Suppliers Pty Ltd v Liwood Pty Ltd (Appeal 2120 of 1997, 19 December, 1997, unreported).  In the former, the principles that interest should be assessed at ordinary commercial rates and that a practice may develop from time to time as to the appropriate rate until it is shown by evidence to be no longer appropriate were discussed.  In the letter it was observed that, once a rate had become customary, good reason would need to be shown to depart from it.  In neither case was encouragement given to calling evidence on the subject routinely or for trivial reasons.

1. In Interchase, White J concluded, on the basis of evidence relating to commercial rates of interest, that a rate of 6% was appropriate from the date selected in that case, 30 June 1993.  I propose to follow that determination in the present case.

1. In the present case, the plaintiffs submit, and the defendant does not take issue, that the defendant should pay the plaintiffs' costs of and incidental to the proceedings to be assessed on the Supreme Court scale on a standard basis.  It is agreed that interest should be calculated from 22 March 1996. 

1. The orders are as follows:

1.          That the plaintiffs recover interest on the judgment sum of $40,890.65 at the rate of 6% per annum calculated from 22 March 1996.

2.          That the defendant pay the plaintiffs' costs of and incidental to the proceedings on the Supreme Court scale, on a standard basis.