Berg Engineering Pty Ltd v Tivity Solutions Pty Ltd (No. 2)

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SUPREME COURT OF QUEENSLAND

CITATION:

Berg Engineering Pty Ltd  v Tivity Solutions Pty Ltd & Ors (No. 2) [2019] QSC 224

PARTIES:

BERG ENGINEERING PTY LTD ACN 050 400 505

(Plaintiff)

v
TIVITY SOLUTIONS PTY LTD ACN 623 215 092

(First Defendant)

AND

BEN NATHAN GABLONSKI

(Second Defendant)

AND

CRAIG VINCENT BOLAND

(Third Defendant)

FILE NO/S:

BS No 4730 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application for costs of application filed 2 October 2018

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1.   The plaintiff pay the defendants’ costs of the application filed on 2 October 2018;

2.   The costs of compliance with the execution of the search order made on 20 September 2018 and of the proceedings thereon are reserved.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – RELEVANT CONSIDERATIONS GENERALLY – whether a special order should be made that the costs be assessed on the indemnity basis or equivalent – where it was held that the plaintiff pay the defendants’ costs of the application to set aside the search order of 20 September 2018

2040 Logan Road Pty Ltd v Body Corporate for Paddington Mews CTS 39149 (No. 2) [2016] QSC 65, cited

Berg Engineering Pty Ltd v Tivity Solutions Pty Ltd & Ors [2019] QSC 68, cited

Colgate-Palmolive Co. v Cussons Pty Ltd (1993) 46 FCR 225, cited

Palaris Mining Pty Ltd v Short & Anor [2012] QSC 224, cited

Re South Downs Packers Pty Ltd [1984] 2 Qd R 559, cited

Town & Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Ltd (1988) 20 FCR 540, cited

Vinod Chopra Films Private Limited v John Doe [2010] FC 387, cited

Uniform Civil Procedure Rules 1999 (Qld)

COUNSEL:

D Kelly QC and D Clarry for the plaintiff

SOLICITORS:

Russells for the plaintiff

Carter Newell for the defendants

JACKSON J:

  1. On 26 March 2019, in accordance with the reasons for judgment in Berg Engineering Pty Ltd v Tivity Solutions Pty Ltd & Ors,[1] I made orders on the defendants’ application to set aside the search order made on 20 September 2018.  The question of costs was deferred until written submissions were made.  Shortly after that, the plaintiff started an appeal from those orders.  As well, the parties made their written submissions on the question of costs of the application for those orders and related proceedings.  The appeal has now been heard, but not decided.  Notwithstanding the unresolved appeal, the parties request that I decide the questions of costs of the application.

  2. The defendants apply for an order that the plaintiff pay their costs of the application to set aside the search order and their costs of complying with the search order, on the indemnity basis.  It is not clear precisely what form of order is sought, but in…

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Details
Case
[2019] QSC 224
Decision Date

CaseChat Overview and Summary

In the case of Berg Engineering Pty Ltd v Tivity Solutions Pty Ltd, the plaintiff, Berg Engineering, sought to enforce a search order against the defendant, Tivity Solutions, which was granted on 20 September 2018. Tivity Solutions subsequently filed an application to set aside the search order, which was dismissed. Tivity Solutions then applied for indemnity costs in relation to the application to set aside the search order. The court was required to determine whether a special order should be made that the costs be assessed on an indemnity basis or equivalent, considering the circumstances of the case.

The court considered the general principles regarding indemnity costs and the relevant factors that should be taken into account. These factors included the conduct of the parties, the merits of the case, and the need to provide a just outcome. The court noted that Berg Engineering had not established a compelling case for the search order, and that the application to set aside the order was largely successful. The court held that it was appropriate to make a special order for indemnity costs in favour of Tivity Solutions.

The court ordered that Berg Engineering pay the costs of Tivity Solutions' application to set aside the search order, filed on 2 October 2018. The costs of compliance with the execution of the search order and of the proceedings thereon were reserved for further consideration. This decision highlights the importance of establishing a compelling case for a search order and the potential consequences of failing to do so.

Orders

Orders of the court

The order of the court is that:

1. The plaintiff pay the defendants’ costs of the application filed on 2 October 2018;

2. The costs of compliance with the execution of the search order made on 20 September 2018 and of the proceedings thereon are reserved.

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

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