Adam Toth Constructions Pty Ltd v Lu (No. 2)

DISTRICT COURT OF QUEENSLAND

CITATION:

Adam Toth Constructions Pty Ltd v Lu (No. 2) [2022] QDC 266

PARTIES:

ADAM TOTH CONSTRUCTIONS PTY LTD

(Plaintiff/Respondent)

v

QIMING LU

(Defendant/Applicant)

FILE NO:

1776/20

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

10 June 2022 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

9 June 2022

JUDGE:

Dearden DCJ

ORDER:

1.   Application granted to the extent that costs should be ordered on an indemnity basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – POWER TO ORDER – where the defendant’s application was granted – where most of the statement of claim was ordered to be struck out – where the applicant/defendant seeks costs of the application on an indemnity basis – whether indemnity costs are appropriate

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld) rr 681, 702, 703

CASES:

Cowley v Mackwood Proprietary Limited & Ors (No. 2) [2015] QSC 344

COUNSEL:

J R Moxon for the defendant/applicant

J Basson for the plaintiff/respondent

SOLICITORS:

23Legal for the applicant/defendant

Rostron Carlyle Rojas Lawyers for the plaintiff/respondent

Introduction

1. On 9 June 2022, I handed down a decision in respect of the matter of Adam Toth Constructions Proprietary Limited v Lu and in doing so, granted the application by the defendant and ordered most (but not all) of the statement of claim be struck out. 

2. It should be noted that those portions of the statement of claim that were not struck out were portions that were accepted by the applicant/defendant in respect of this application.

3. The applicant/defendant now seeks costs of this application on the indemnity basis. 

   The Law – costs

4. The relevant rules indicate at Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) r 681 that costs follow the event;[1] that the default position is an award of costs on the standard basis,[2] and at UCPR r 703,[3] this court has the power to order costs to be assessed on the indemnity basis.

   [1]Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) r 681.

   [2]UCPR r 702(1).

   [3]UCPR r 703.

   Defendant/applicant submissions

5. The lines of this particular battleground are narrow because Mr Basson who appears for the plaintiff/respondent appropriately concedes that costs should be awarded, and should be awarded, he submits, on a standard basis; whereas Mr Moxon who appears for the defendant/applicant argues for costs on the indemnity basis. 

6. Mr Moxon has taken me through the material, and starting at the affidavit of Andrew Suffern sworn 8 April 2022,[4] is a letter dated 21 February 2022, setting out an extensive list in exhaustive detail of the defendant’s difficulties with the plaintiff’s particulars and is, in Mr Moxon’s submission, clear notice since that date in February of the fundamental flaws (as the defendant has submitted in these proceedings) of the plaintiff’s case and providing the plaintiff an opportunity to respond. 

   [4]Affidavit of Andrew Suffern sworn 8 April 2022, exhibit AWS 16 (p. 32 of the exhibits).

7. At exhibit AWS 17,[5] the plaintiff’s solicitors respond,…