Canaipa Developments Pty Ltd v TLC Jones Pty Ltd (No 2)

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SUPREME COURT OF QUEENSLAND

CITATION:

Canaipa Developments Pty Ltd v TLC Jones Pty Ltd (No 2) [2021] QSC 331

PARTIES:

CANAIPA DEVELOPMENTS PTY LTD
(ACN 118 404 461)

(plaintiff)

v
TLC JONES PTY LTD (ACN 142 234 099) AS TRUSTEE FOR TLC SUPERMARKETS UNIT TRUST NO 2 ABN 46 746 097 161
(defendant)

FILE NO/S:

BS No 678 of 2021

DIVISION:

Trial Division

PROCEEDING:

Civil

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

7 December 2021

JUDGE:

Applegarth J

ORDER:

The plaintiff pay 80% of the defendant’s costs of and incidental to the proceeding, including the hearing on 7 December 2021, to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – DEPRIVING SUCCESSFUL PARTY OF COSTS – OTHER CASES – SUBSTANTIAL SUCCESS – where the plaintiff failed on all but one minor issue – where the plaintiff succeeded in establishing that the expert failed to complete the expert determination in a limited respect – whether the plaintiff or the defendant enjoyed substantial success – whether the party which has enjoyed substantial success should be deprived of some of its costs

Uniform Civil Procedure Rules 1999 (Qld), rr 681, 684

BHP Coal Pty Ltd & Ors v O & K Orenstein & Koppel AG & Ors (No 2) [2009] QSC 64, cited
Canaipa Developments Pty Ltd v TLC Jones Pty Ltd [2021] QSC 237, cited
Cretazzo v Lombardi (1975) 13 SASR 4, cited
Interchase Corporation Ltd (in liq.) v Grosvenor Hill (Queensland) Pty Ltd (No 3) [2003] 1 Qd R 26, cited
Kosho Pty Ltd v Trilogy Funds Management Ltd (No 2) [2013] QSC 170, cited
Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15, cited
Oshlack v Richmond River Council (1998) 193 CLR 72, cited
Re Quality Blended Liquor Pty Ltd (No 2) [2014] QSC 307, cited
Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39, cited
The Australian Institute for Progress Ltd v The Electoral Commission of Queensland & Ors (No 2) [2020] QSC 174, cited

COUNSEL:

A J Schriiffer for the plaintiff

M Black for the defendant

SOLICITORS:

McCarthy Durie Lawyers for the plaintiff

PM Lee & Co Lawyers for the defendant

  1. On 17 September 2021 I determined, contrary to the plaintiff’s position, that Cushman & Wakefield had been validly appointed as a joint expert, that Mr Cox had been allocated as an “appropriate expert” and was not required to start the expert determination process again, but could rely on the work completed by Ms Rudken.[1]  I also rejected the plaintiff’s submissions that:

    (a)the defendant had impermissibly made submissions to the joint expert in breach of the Mediation Agreement;

    (b)the joint expert had misconstrued the relevant lease;

    (c)the joint expert had impermissibly taken into account submissions or material in a way that invalidated the determination; and

    (d)the joint expert had impermissibly proceeded on the basis that…

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Details
Case
[2021] QSC 331
Decision Date

CaseChat Overview and Summary

In the matter of Canaipa Developments Pty Ltd versus TLC Jones Pty Ltd (No 2), the case was brought before the court to address a dispute relating to costs in civil proceedings within the state and territory courts. The plaintiff, Canaipa Developments, sought to challenge the costs incurred by the defendant, TLC Jones, following the plaintiff's limited success in the case. The primary focus of the court's consideration was whether Canaipa Developments, despite achieving some success, should still be required to contribute to the costs incurred by TLC Jones, which was the more successful party overall.

The central legal issues the court had to decide involved the principles governing costs in civil litigation when one party achieves substantial success while the other does not. Specifically, the court needed to determine if Canaipa Developments' limited success on one minor issue should impact the overall costs order, and whether TLC Jones's substantial success on multiple significant issues justified a costs order that reflected their overall success. The court had to balance the principle that the successful party should be compensated against the need to ensure fairness, particularly when the losing party had not succeeded on the major issues at stake.

The court reasoned that despite Canaipa Developments' limited success on one issue, the overall outcome of the litigation favoured TLC Jones. The court concluded that the costs order should reflect the disparity in success between the parties. By failing to achieve success on the majority of the issues, Canaipa Developments should not escape the financial burden of the litigation costs. Consequently, the court ordered that Canaipa Developments pay 80% of TLC Jones's costs of and incidental to the proceeding, including the hearing on 7 December 2021, to be assessed on the standard basis. This order was intended to recognise TLC Jones's substantial success while also holding Canaipa Developments accountable for a proportionate share of the litigation costs.

Orders

Orders of the court

The plaintiff pay 80% of the defendant’s costs of and incidental to the proceeding, including the hearing on 7 December 2021, to be assessed on the standard basis.

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

The plaintiff’s success was very limited and arose, in part, because it did not wish the joint expert to complete the determination, including by completing the GST exercise identified by the expert. The plaintiff failed on substantial issues that occupied a substantial part of the preparation for hearing and submissions at it. The defendant was, overall, the successful party. Conclusion The defendant’s failure on the issue upon which the plaintiff succeeded should be reflected in it being deprived of some of its costs. The plaintiff’s lack of success should be reflected in a costs order that has the effect of requiring it to pay the defendant’s costs of litigating the many issues upon which the defendant succeeded. Rather than order that the plaintiff have its costs of the issue upon which it succeeded and that the defendant have its costs of the issues upon which it succeeded, an appropriate order as to costs is to order the plaintiff to pay 80% of the defendant’s costs of and incidental to the proceeding, including the hearing on 7 December 2021, to be assessed on the standard basis.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.