Chan & Ors v Macarthur Minerals Ltd & Ors - [2019] QSC 168

SUPREME COURT OF QUEENSLAND

CITATION:

Chan & Ors v Macarthur Minerals Ltd & Ors [2019] QSC 168

PARTIES:

SING CHUK CHARLES CHAN

(first plaintiff)

and
WAI LAP VICTOR CHAN
(second plaintiff)
and
WAI TAK KWOK
(third plaintiff)
v
MACARTHUR MINERALS LIMITED
ACN 103 011 436

(first defendant)
and
ALAN PHILLIPS
(second defendant)
and
JOE PHILLIPS
(third defendant)

FILE NO:

BS No 518 of 2016

DIVISION:

Trial

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

2 July 2019

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Flanagan J

ORDER:

The plaintiffs pay the defendants’ costs of the proceeding.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – RELEVANT CONSIDERATIONS GENERALLY – where the defendants have been successful on two occasions in striking out the plaintiffs’ pleadings – where, after the first occasion, the plaintiffs delayed in filing an amended pleading – where, on the second occasion, the Court also dismissed the proceeding in its inherent jurisdiction – whether the defendants should be awarded their costs of the proceeding on the indemnity basis

Uniform Civil Procedure Rules 1999 (Qld), r 702, r 703

Bartlett v Barclays Bank Trust Co Ltd [1980] Ch 515, cited
Chan & Ors v Macarthur Minerals Ltd & Ors [2017] QSC 13, related
Chan & Ors v Macarthur Minerals Ltd & Ors [2019] QSC 143, related
Colgate-Palmolive Company and Anor v Cussons Pty Ltd (1993) 46 FCR 225, cited
Di Carlo v Dubois & Ors [2002] QCA 225, cited
LPD Holdings (Aust) Pty Ltd & Anor v Phillips, Hickey and Toigo & Ors [2013] QCA 305
Mio Art Pty Ltd v Macequest Pty Ltd (No 2) [2013] QSC 272, cited
NSW Medical Defence Union Ltd v Crawford (1992) 11 ACSR 406, cited
Oshlack v Richmond River Council (1998) 193 CLR 72, cited
Robertson Vlahos (No 2) [2010] QSC 475, cited
Rosniak v Government Insurance Office (1997) 41 NSWLR 608, cited
Thiess Pty Ltd v FLSMIDTH Minerals Pty Ltd (No 2) [2010] QSC 120, cited

COUNSEL:

R G Bain QC with C Jennings for the plaintiffs
L F Kelly QC with D J Pyle for the defendants

SOLICITORS:

McBride Legal for the plaintiffs
Shand Taylor for the first defendant
Clayton Utz for the second and third defendants

The defendants have been successful on two occasions in striking out the plaintiffs’ pleadings. On the second occasion, I also ordered that the proceeding be dismissed. The defendants now seek to recover their costs of the proceeding on the indemnity basis. The plaintiffs accept they should pay the costs of the proceeding but only on the standard basis.

Background

I have set out the history of the proceeding in the Reasons published on 7 June 2019.[1]
[1] Chan & Ors v Macarthur Minerals Limited & Ors [2019] QSC 143.
The proceeding commenced on 11 January 2016 with the plaintiffs’ filing of a claim and statement of claim. At its core, 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: [2019] QSC 168
Decision Date: 2 July 2019

CaseChat Overview and Summary

Chan and others filed a suit against Macarthur Minerals Ltd and others, seeking relief from various allegations, including breaches of fiduciary duty and unjust enrichment. The defendants moved to strike out the plaintiffs' pleadings on two separate occasions, with success on both attempts. After the first strike-out, the plaintiffs delayed in filing an amended statement of claim. Upon the second strike-out, the court dismissed the proceeding in its inherent jurisdiction. The defendants applied for indemnity costs of the proceeding. The court considered whether, given the circumstances, the defendants should be awarded their costs on the indemnity basis.

The central legal issue before the court was whether the defendants were entitled to indemnity costs following their successful applications to strike out the plaintiffs' pleadings. The court noted that indemnity costs are not awarded lightly and are reserved for cases of serious misconduct or where the plaintiff's case is hopeless from the outset. The court examined the plaintiffs' conduct, including their delay in filing an amended pleading after the first strike-out, and the overall meritlessness of the proceeding after the second strike-out. The court determined that the plaintiffs' conduct warranted the award of indemnity costs to the defendants.

The court reasoned that the plaintiffs' conduct in delaying the filing of an amended pleading after the first strike-out was unreasonable and contributed to the defendants' costs. Additionally, the court found that the proceeding was without merit from its inception, as evidenced by the second successful strike-out and the subsequent dismissal in the court's inherent jurisdiction. The court concluded that the defendants' successful applications to strike out the pleadings and the plaintiffs' conduct warranted the award of indemnity costs. The court ordered the plaintiffs to pay the defendants' costs of the proceeding.

The court ordered that the plaintiffs pay the defendants' costs of the proceeding. This included costs associated with the successful applications to strike out the plaintiffs' pleadings and the inherent jurisdiction dismissal. The court's decision underscored the importance of timely and meritful litigation and the consequences for parties who engage in unreasonable conduct.

Orders

Orders of the court

The plaintiffs pay the defendants’ costs of the proceeding.

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:	Chan & Ors v Macarthur Minerals Ltd & Ors [2019] QSC 168
PARTIES:	SING CHUK CHARLES CHAN (first plaintiff) and WAI LAP VICTOR CHAN (second plaintiff) and WAI TAK KWOK (third plaintiff) v MACARTHUR MINERALS LIMITED ACN 103 011 436 (first defendant) and ALAN PHILLIPS (second defendant) and JOE PHILLIPS (third defendant)
FILE NO:	BS No 518 of 2016
DIVISION:	Trial
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	2 July 2019
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Flanagan J
ORDER:	The plaintiffs pay the defendants’ costs of the proceeding.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – RELEVANT CONSIDERATIONS GENERALLY – where the defendants have been successful on two occasions in striking out the plaintiffs’ pleadings – where, after the first occasion, the plaintiffs delayed in filing an amended pleading – where, on the second occasion, the Court also dismissed the proceeding in its inherent jurisdiction – whether the defendants should be awarded their costs of the proceeding on the indemnity basis Uniform Civil Procedure Rules 1999 (Qld), r 702, r 703 Bartlett v Barclays Bank Trust Co Ltd [1980] Ch 515, cited Chan & Ors v Macarthur Minerals Ltd & Ors [2017] QSC 13, related Chan & Ors v Macarthur Minerals Ltd & Ors [2019] QSC 143, related Colgate-Palmolive Company and Anor v Cussons Pty Ltd (1993) 46 FCR 225, cited Di Carlo v Dubois & Ors [2002] QCA 225, cited LPD Holdings (Aust) Pty Ltd & Anor v Phillips, Hickey and Toigo & Ors [2013] QCA 305 Mio Art Pty Ltd v Macequest Pty Ltd (No 2) [2013] QSC 272, cited NSW Medical Defence Union Ltd v Crawford (1992) 11 ACSR 406, cited Oshlack v Richmond River Council (1998) 193 CLR 72, cited Robertson Vlahos (No 2) [2010] QSC 475, cited Rosniak v Government Insurance Office (1997) 41 NSWLR 608, cited Thiess Pty Ltd v FLSMIDTH Minerals Pty Ltd (No 2) [2010] QSC 120, cited
COUNSEL:	R G Bain QC with C Jennings for the plaintiffs L F Kelly QC with D J Pyle for the defendants
SOLICITORS:	McBride Legal for the plaintiffs Shand Taylor for the first defendant Clayton Utz for the second and third defendants