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, citedCOUNSEL:
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
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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- Case
- [2021] QSC 331
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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