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:
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.
[1] [2019] QSC 68.
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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- Case
- [2019] QSC 224
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.