Bentleys (Sunshine Coast) Pty Ltd v Thomson

Bentleys (Sunshine Coast) Pty Ltd, along with other appellants, brought a case against Thomson, who was the respondent. The dispute arose from the respondent's successful attempt to have the appellants' pleading struck out, with leave to re-plead, and her victory in preventing the appellants from having the entire claim struck out. The court was tasked with determining the appropriate allocation of costs between the parties, particularly whether costs should follow the event and if they should be awarded on an indemnity basis. Additionally, the court had to consider whether an indemnity certificate should be granted to the respondent under the Queensland Appeal Costs Fund.

The legal issues before the court involved the general rule that costs follow the event and the potential for awarding costs on an indemnity basis. The court also needed to decide whether the respondent's arguments for an indemnity certificate were valid, considering the primary judge's findings and the respondent's efforts in the proceedings. The court's reasoning focused on the balance of success between the parties and the fairness of cost allocation, particularly in light of the respondent's success in the appeal against the order not to have a separate trial of the third-party proceedings.

The court concluded that the costs of the application for a separate trial of the third-party proceedings should be reserved, and that the defendant should pay 50% of the third parties' costs of the application filed on 11 May 2017, while the third parties should pay 50% of the defendant's costs of the same application. Regarding the appeal, the court ordered that the respondent pay 50% of the appellants' costs, excluding those incurred solely in the appeal against the decision not to order a separate trial of the third-party proceedings. Conversely, the appellants were ordered to pay 50% of the respondent's costs of the appeal, also excluding those incurred in the same appeal. The court set aside the order reserving the costs of the applications and made specific orders for the distribution of costs among the parties.

The final orders included reserving the costs of the application for a separate trial of the third-party proceedings, directing the defendant to pay 50% of the third parties' costs of the application filed on 11 May 2017, and requiring the third parties to pay 50% of the defendant's costs of the same application. Furthermore, the court ordered the respondent to pay 50% of the appellants' costs of the appeal, excluding those related to the appeal against the decision not to order a separate trial of the third-party proceedings, while the appellants were to pay 50% of the respondent's costs of the appeal, excluding those related to the same appeal. This comprehensive cost allocation aimed to reflect the parties' respective successes and the fairness of cost distribution in the case.