CMF Projects P/L v Riggall - [2014] QDC 101

DISTRICT COURT OF QUEENSLAND

CITATION:

CMF Projects P/L v Riggall & Anor [2014] QDC 101

PARTIES:

CMF PROJECTS PTY LTD (ACN 114 539 212)

Respondent/plaintiff

v

BRIAN NOEL MANSON RIGGALL

applicant/first defendant

and

JANE REIMAN RIGGALL

applicant/second defendant

FILE NO/S:

BD4085 of 2013

DIVISION:

Civil Applications

PROCEEDING:

Application for costs

ORIGINATING COURT:

Brisbane

DELIVERED ON:

8 May 2014

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions to 6 May 2014

JUDGE:

Andrews SC DCJ

ORDER:

Order that the plaintiff pay on the indemnity basis the defendants’ costs of the applications filed on 1 and 15 April 2014

CATCHWORDS:

COSTS – whether indemnity costs appropriate – where one cause of action was reasonably included in pleading but a second cause of action was unreasonably maintained – where both struck out as unenforceable

UCPR 171

Mio Art Pty Ltd v Macequest Pty Ltd & Ors [2013] QSC 211

Mio Art Pty Ltd v Macequest Pty Ltd (No 2) [2013] QSC 271

Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 46 FCR 225 at 233; 118 ALR 248

Di Carlo v Dubois & Ors [2002] QCA 225

Gideona v Suncorp Metway Insurance Ltd [2005] QSC 309

COUNSEL:

G I Thomson for the applicant/defendants

G Coveney for the respondent plaintiff

SOLICITORS:

H W L Ebbsworth for the applicant/defendants

Arrow Law for the respondent/plaintiff

The issue is whether indemnity costs are appropriate. On 24 April 2014 in this proceeding I made orders and published reasons.[1] On the amended application of the defendants (“home owners”) I ordered that the plaintiff’s (“builder’s”) amended statement of claim be struck out. Because the builder may not maintain its estoppel argument paragraphs 4(d), 10 and 11 of the builder’s reply were ordered to be struck out together with paragraphs 1, 3(b) and 4 of the answer to the amended counter-claim. The parties had not made submissions as to costs. By my reasons I observed:

The general rule is that where the court strikes out all or part of a pleading there will be an order that the costs of the application be paid by the unsuccessful party on the indemnity basis. I am reluctant to impose that order without first giving the unsuccessful builder liberty to make submissions to the contrary. However, in an effort to spare the parties from wasted expense it seems sensible to order that the plaintiff pay the defendants’ costs of the application calculated on the indemnity basis and to give the plaintiff liberty for 7 days to apply to set aside that order for costs.

[1]CMF Projects P/L v Riggall & Anor [2014] QDC 090

The builder has since opposed the indemnity basis for the costs. The home owners submit that indemnity costs are appropriate.

The builder’s counsel’s submission helpfully drew my attention to Mio Art Pty Ltd v Macequest Pty Ltd (No 2) [2013] QSC 271. With the benefit of that decision I accept that there is no general rule that where the court strikes out all or part of a…

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: [2014] QDC 101
Decision Date: 8 May 2014

CaseChat Overview and Summary

The case involved a dispute between CMF Projects P/L and Riggall, with the latter being the defendants. The plaintiff sought to enforce a written contract, but the defendants argued that the contract was unenforceable due to certain clauses. The matter was heard in the Federal Circuit Court of Australia. The defendants applied to strike out the claims on the grounds that they were unenforceable, and the plaintiff subsequently applied for leave to amend the statement of claim.

The central legal issue was whether indemnity costs were appropriate, given that one cause of action was reasonably included in the pleadings, but a second cause of action was unreasonably maintained. The court considered whether it was appropriate to order the plaintiff to pay the defendants' costs on an indemnity basis, despite the fact that both causes of action were ultimately struck out as unenforceable.

The court held that it was appropriate to order the plaintiff to pay the defendants' costs on an indemnity basis. The court found that while the first cause of action was reasonably included in the pleadings, the second cause of action was unreasonably maintained. The court considered it appropriate to order indemnity costs due to the unreasonable maintenance of the second cause of action. The court emphasised the importance of ensuring that claims are well-founded and reasonable before proceeding with litigation, to avoid unnecessary costs for the opposing party. The court concluded that the plaintiff should pay the defendants' costs of the applications filed on 1 and 15 April 2014 on an indemnity basis.

Orders

Orders of the court

Order that the plaintiff pay on the indemnity basis the defendants’ costs of the applications filed on 1 and 15 April 2014

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:	CMF Projects P/L v Riggall & Anor [2014] QDC 101
PARTIES:	CMF PROJECTS PTY LTD (ACN 114 539 212) Respondent/plaintiff v BRIAN NOEL MANSON RIGGALL applicant/first defendant and JANE REIMAN RIGGALL applicant/second defendant
FILE NO/S:	BD4085 of 2013
DIVISION:	Civil Applications
PROCEEDING:	Application for costs
ORIGINATING COURT:	Brisbane
DELIVERED ON:	8 May 2014
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions to 6 May 2014
JUDGE:	Andrews SC DCJ
ORDER:	Order that the plaintiff pay on the indemnity basis the defendants’ costs of the applications filed on 1 and 15 April 2014
CATCHWORDS:	COSTS – whether indemnity costs appropriate – where one cause of action was reasonably included in pleading but a second cause of action was unreasonably maintained – where both struck out as unenforceable UCPR 171 Mio Art Pty Ltd v Macequest Pty Ltd & Ors [2013] QSC 211 Mio Art Pty Ltd v Macequest Pty Ltd (No 2) [2013] QSC 271 Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 46 FCR 225 at 233; 118 ALR 248 Di Carlo v Dubois & Ors [2002] QCA 225 Gideona v Suncorp Metway Insurance Ltd [2005] QSC 309
COUNSEL:	G I Thomson for the applicant/defendants G Coveney for the respondent plaintiff
SOLICITORS:	H W L Ebbsworth for the applicant/defendants Arrow Law for the respondent/plaintiff