Built Qld Pty Limited v Pro-Invest Australian Hospitality Opportunity (ST) Pty Ltd [No 2]

Built Qld Pty Limited (appellant) appealed against a decision of the Queensland Supreme Court (respondent) which dismissed the appellant’s claim in the District Court and allowed the respondent’s counterclaim. The appellant made two offers to settle the matter and the respondent rejected both offers. The appellant argued that it obtained a judgment no less favourable than its first offer and therefore sought orders that the respondent pay the appellant’s costs of the claim on an indemnity basis and the costs of the counterclaim on a standard basis.

The court was required to determine whether the respondent was to pay the appellant’s costs of the claim in the trial division on an indemnity basis and whether rule 360 of the Uniform Civil Procedure Rules 1999 (Qld) applied. The court was also required to determine whether another order for costs was appropriate within the meaning of rule 361 of the Uniform Civil Procedure Rules 1999 (Qld).

The court found that the language of rules 360 and 361 was mandatory and that the appellant had obtained a judgment no less favourable than its first offer. The court noted that the mandatory nature of the language in the rules was a provision otherwise within the meaning of rule 681(2) and that the court had a wide discretion in awarding costs, but that costs followed the event unless the court otherwise ordered. The court held that the respondent was to pay the appellant’s costs of the claim in the trial division on an indemnity basis and the costs of the counterclaim on a standard basis from 9 May 2019.

The court set aside the judgment given by Williams J on 26 November 2021 and gave judgment for the appellant against the respondent in the amount of $5,702,929.83. The court also ordered that the respondent pay the appellant’s costs of the appeal agreed or assessed on the standard basis.