BDO Group Holdings (Qld) Limited v Sully (No 2) - [2015] QSC 201

SUPREME COURT OF QUEENSLAND

CITATION:

BDO Group Holdings (Qld) Limited & Anor v Sully (No 2) [2015] QSC 201

PARTIES:

BDO GROUP HOLDINGS (QLD) LIMITED (FORMERLY BDO GROUP HOLDINGS (QLD) PTY LTD)
ACN 133 657 833

(first applicant)
BDO ADMINISTRATION (QLD) PTY LTD
ACN 134 036 490
(second applicant)

v
BRIAN RUSSELL SULLY

(respondent)

FILE NO:

Supreme Court No 2666 of 2015

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

21 July 2015

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Flanagan J

ORDER:

The respondent pay the applicants’ costs of the proceeding to be assessed or otherwise agreed.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE - COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – where the applicants were substantially successful in the proceeding to restrain the respondent under a restraint of trade provision – where the respondent seeks an order that the parties each pay their own costs or alternatively the applicants are only entitled to a proportion of their costs – whether costs should follow the event

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – OTHER CASES – SUBSTANTIAL SUCCESS – where the applicants were substantially successful in the proceeding to restrain the respondent under a restraint of trade provision – where the respondent seeks an order that the parties each pay their own costs or alternatively the applicants are only entitled to a proportion of their costs – whether costs should depart from the general rule

Uniform Civil Procedure Rules 1999 (Qld), r 681, r 684

BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No 2) [2009] QSC 64, cited

COUNSEL:

D G Clothier QC, with G Sheahan, for the appellants

K E Downes QC, with P McCafferty, for the respondent

SOLICITORS:

McInnes Wilson Lawyers for the appellants

Holding Redlich for the respondent

On 19 June 2015 the Court declared that certain restraint clauses contained in the BDO Shareholders’ Agreement and the Employment Agreement were binding on the respondent for the period of 12 months from 19 April 2015. The Court also made orders that the respondent be restrained by injunction until 19 April 2016 from:
(a)engaging in any activity which involves providing accounting services to any person who was, at any time within the 24 months prior to 19 April 2015, a client of the BDO Group; and
(b)inducing, soliciting or canvassing, approaching or accepting any approach from any person who was, at any time during the 24 month period prior to 19 April 2015, a client of the BDO Group, to obtain the custom of that person in a business or activity which:
(i) is the same or similar to the whole or material part or parts of the accounting services provided by the BDO Group; or
(ii) is in competition with the accounting services provided by the BDO Group.
The Court invited submissions as to costs. The respondent’s submissions on costs were received 3 July 2015 and the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read BDO Group Holdings (Qld) Limited v Sully (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] QSC 201
Decision Date: 21 July 2015

CaseChat Overview and Summary

In the case of BDO Group Holdings (Qld) Limited v Sully (No 2), the applicants sought an order to restrain the respondent from working in a competing business in contravention of a restraint of trade clause in his contract of employment. The applicants were substantially successful in their action. The respondent, however, sought an order that each party pay their own costs or, alternatively, that the applicants only be entitled to a proportion of their costs. The court was required to decide whether the general rule that costs follow the event should apply, or whether there were grounds to depart from this rule.

The legal issue before the court was whether the general principle that costs follow the event should apply in this case, or if there were exceptional circumstances justifying a departure from this rule. The applicants had been substantially successful in their action, and the court needed to determine if this was sufficient to warrant the imposition of costs on the respondent. The respondent argued that the applicants should only receive a proportion of their costs due to the nature of the relief sought and the fact that the restraint of trade clause was not specifically enforced.

The court found that the general rule that costs follow the event should apply in this case. The applicants were substantially successful in their action, which justified the imposition of costs on the respondent. The court held that there were no exceptional circumstances that warranted a departure from the general rule. The court considered that the nature of the relief sought and the fact that the restraint of trade clause was not specifically enforced did not alter the outcome in terms of costs.

The court ordered that the respondent pay the applicants’ costs of the proceeding to be assessed or otherwise agreed. This outcome was based on the applicants’ substantial success in their action and the absence of any exceptional circumstances that would warrant a departure from the general rule that costs follow the event.

Orders

Orders of the court

The respondent pay the applicants’ costs of the proceeding to be assessed or otherwise agreed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	BDO Group Holdings (Qld) Limited & Anor v Sully (No 2) [2015] QSC 201
PARTIES:	BDO GROUP HOLDINGS (QLD) LIMITED (FORMERLY BDO GROUP HOLDINGS (QLD) PTY LTD) ACN 133 657 833 (first applicant) BDO ADMINISTRATION (QLD) PTY LTD ACN 134 036 490 (second applicant) v BRIAN RUSSELL SULLY (respondent)
FILE NO:	Supreme Court No 2666 of 2015
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	21 July 2015
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Flanagan J
ORDER:	The respondent pay the applicants’ costs of the proceeding to be assessed or otherwise agreed.
CATCHWORDS:	PROCEDURE – COSTS – GENERAL RULE - COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – where the applicants were substantially successful in the proceeding to restrain the respondent under a restraint of trade provision – where the respondent seeks an order that the parties each pay their own costs or alternatively the applicants are only entitled to a proportion of their costs – whether costs should follow the event PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – OTHER CASES – SUBSTANTIAL SUCCESS – where the applicants were substantially successful in the proceeding to restrain the respondent under a restraint of trade provision – where the respondent seeks an order that the parties each pay their own costs or alternatively the applicants are only entitled to a proportion of their costs – whether costs should depart from the general rule Uniform Civil Procedure Rules 1999 (Qld), r 681, r 684 BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No 2) [2009] QSC 64, cited
COUNSEL:	D G Clothier QC, with G Sheahan, for the appellants K E Downes QC, with P McCafferty, for the respondent
SOLICITORS:	McInnes Wilson Lawyers for the appellants Holding Redlich for the respondent