BRB Modular Pty Ltd v AWX Constructions Pty Ltd (No 2) - [2015] QSC 228

SUPREME COURT OF QUEENSLAND

CITATION:

BRB Modular Pty Ltd v AWX Constructions Pty Ltd & Ors (No 2) [2015] QSC 228

PARTIES:

BRB MODULAR PTY LTD
ACN 114 678 349

(applicant)

v
AWX CONSTRUCTIONS PTY LTD
ABN 118 400 098

(first respondent)
THE ADJUDICATION REGISTRAR (QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION)
(second respondent)

JORAM (JOHN) MURRAY
(third respondent)

FILE NO/S:

SC No 7073 of 2015

DIVISION:

Trial Division

PROCEEDING:

Costs

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 August 2015

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers; written submissions received 5 August 2015

JUDGE:

Applegarth J

ORDER:

The first respondent pay one half of the applicant’s costs of and incidental to the hearing before Bond J on 22 July 2015 to be assessed on the standard basis unless otherwise agreed.

CATCHWORDS:

PROCEDURE – COSTS – INTERLOCUTORY PROCEEDINGS – COSTS RESERVED – where the applicant succeeded in obtaining an interlocutory injunction – where the costs of the interlocutory application were reserved – where the originating application was subsequently dismissed and a costs order made in the first respondent’s favour, excluding the reserved costs – where the parties agree that the general principle that costs follow the event applies – whether the “event” is the granting of the interlocutory application or the dismissal of the substantive proceeding – what order should be made as to the reserved costs

Uniform Civil Procedure Rules 1999 (Qld) r 681(1)

BRB Modular Pty Ltd v AWX Constructions Pty Ltd & Ors [2015] QSC 218, cited

BRB Modular Pty Ltd v AWX Constructions Pty Ltd & Ors [2015] QSC 222, cited

COUNSEL:

P R Franco QC for the applicant

D P O’Brien QC for the first respondent

SOLICITORS:

Holding Redlich for the applicant

McInnes Wilson Lawyers for the first respondent

On 31 July 2015, I dismissed BRB’s originating application and ordered that it pay AWX’s costs of and incidental to the proceedings, other than the reserved costs of the hearing of BRB’s application for an interlocutory injunction.[1] Those costs were reserved by Bond J.[2] Each party seeks them, and invokes the general principle, reflected in r 681(1) of the Uniform Civil Procedure Rules 1999 (Qld), that costs follow the event, unless the court orders otherwise.
[1] BRB Modular Pty Ltd v AWX Constructions Pty Ltd & Ors [2015] QSC 218.
[2] BRB Modular Pty Ltd v AWX Constructions Pty Ltd & Ors [2015] QSC 222.
BRB argues that it should have a costs order made in its favour in respect of its application for an interlocutory injunction, which was the subject of a contested hearing before Bond J on 22 July 2015. It succeeded in persuading Bond J that the balance of convenience favoured the granting an injunction on terms. According to BRB, the costs should follow the event of its success in obtaining a restraint on AWX from doing certain things, including asking the adjudicator to provide an adjudication certificate and from filing it.
AWX takes a different view of 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.

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Details

Case: [2015] QSC 228
Decision Date: 7 August 2015

CaseChat Overview and Summary

In the case of BRB Modular Pty Ltd v AWX Constructions Pty Ltd (No 2), the applicant, BRB Modular, sought an interlocutory injunction against the first respondent, AWX Constructions, and a subsequent costs order. The application for the interlocutory injunction was successful, and costs were reserved for a later determination. The substantive proceedings were later dismissed, and the first respondent was ordered to pay the applicant's costs, excluding the reserved costs. Both parties agreed that the general principle that costs follow the event should apply, but they disagreed on what the relevant event was for the purpose of determining the reserved costs.

The central legal issue was whether the "event" for the purpose of determining the reserved costs was the granting of the interlocutory application or the dismissal of the substantive proceeding. The court had to consider the appropriate approach to determining the reserved costs in light of the parties' agreement that costs follow the event.

The court determined that the relevant "event" for the purpose of determining the reserved costs was the dismissal of the substantive proceeding, as this was the event that determined the overall outcome of the litigation. The court noted that the applicant had succeeded in the interlocutory application, but this did not necessarily mean that they should bear the costs of the reserved application. The court held that the first respondent should pay one half of the applicant's costs of and incidental to the hearing before Bond J on 22 July 2015, to be assessed on the standard basis unless otherwise agreed.

The court's decision was that the first respondent was to pay one half of the applicant's costs of and incidental to the hearing before Bond J on 22 July 2015, to be assessed on the standard basis unless otherwise agreed. The court found that the dismissal of the substantive proceeding was the relevant event for the purpose of determining the reserved costs, and that the first respondent should bear one half of the costs associated with the interlocutory application. This decision reflects the principle that costs should follow the event, and that the overall outcome of the litigation is the relevant event for the purpose of determining the reserved costs.

Orders

Orders of the court

The first respondent pay one half of the applicant’s costs of and incidental to the hearing before Bond J on 22 July 2015 to be assessed on the standard basis unless 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:	BRB Modular Pty Ltd v AWX Constructions Pty Ltd & Ors (No 2) [2015] QSC 228
PARTIES:	BRB MODULAR PTY LTD ACN 114 678 349 (applicant) v AWX CONSTRUCTIONS PTY LTD ABN 118 400 098 (first respondent) THE ADJUDICATION REGISTRAR (QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION) (second respondent) JORAM (JOHN) MURRAY (third respondent)
FILE NO/S:	SC No 7073 of 2015
DIVISION:	Trial Division
PROCEEDING:	Costs
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	7 August 2015
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers; written submissions received 5 August 2015
JUDGE:	Applegarth J
ORDER:	The first respondent pay one half of the applicant’s costs of and incidental to the hearing before Bond J on 22 July 2015 to be assessed on the standard basis unless otherwise agreed.
CATCHWORDS:	PROCEDURE – COSTS – INTERLOCUTORY PROCEEDINGS – COSTS RESERVED – where the applicant succeeded in obtaining an interlocutory injunction – where the costs of the interlocutory application were reserved – where the originating application was subsequently dismissed and a costs order made in the first respondent’s favour, excluding the reserved costs – where the parties agree that the general principle that costs follow the event applies – whether the “event” is the granting of the interlocutory application or the dismissal of the substantive proceeding – what order should be made as to the reserved costs Uniform Civil Procedure Rules 1999 (Qld) r 681(1) BRB Modular Pty Ltd v AWX Constructions Pty Ltd & Ors [2015] QSC 218, cited BRB Modular Pty Ltd v AWX Constructions Pty Ltd & Ors [2015] QSC 222, cited
COUNSEL:	P R Franco QC for the applicant D P O’Brien QC for the first respondent
SOLICITORS:	Holding Redlich for the applicant McInnes Wilson Lawyers for the first respondent