Creswick v Creswick (No. 2)

Case [2011] QSC 118

SUPREME COURT OF QUEENSLAND

CITATION:

Creswick and Ors v Creswick (No. 2) [2011] QSC 118

PARTIES:

JOHN FRANCIS CRESWICK
(first plaintiff/first defendant by counterclaim)
and
WILLIAM GERARD CRESWICK
(second plaintiff/second defendant by counterclaim)
and
SHAYNE MARISE CRESWICK
(third plaintiff/third defendant by counterclaim)
and
JANE VERONICA CRESWICK
(fourth plaintiff/fourth defendant by counterclaim)
and
TABTILL PTY LTD
ACN 010 408 545
AS TRUSTEE FOR THE JOHN CRESWICK FAMILY TRUST
(fifth plaintiff)
and
TABTILL PTY LTD
ACN 010 408 545
(fifth defendant by counterclaim)
and
TABTILL NO. 2 PTY LTD
ACN 098 424 741
(sixth defendant by counterclaim)
and
TABTILL NO. 3 PTY LTD
ACN 106 070 948
(seventh defendant by counterclaim)
and
TABTILL NO. 4 PTY LTD
ACN 106 071 096
(eighth defendant by counterclaim)
and
T2 PROJECTS PTY LTD
ACN 109 792 707
(ninth defendant by counterclaim)
and
JAYNE EMMA CRESWICK
(tenth defendant by counterclaim)

v

FELIX ANTHONY CRESWICK
(defendant/plaintiff by counterclaim)

FILE NO:

10963 of 2007

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

13 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Daubney J

ORDERS:

1.    The plaintiffs shall pay the defendant’s costs of and incidental to the application filed 29 October 2010 on the standard basis;

2.    The plaintiff by counterclaim shall pay the costs of the tenth defendant by counterclaim of and incidental to defending the counterclaim against the tenth defendant by counterclaim, such costs to be paid on the indemnity basis;

3.    Otherwise:

      (a)     The defendant shall pay 75 per cent of the plaintiffs’ costs of the claim, including any reserved costs, on the standard basis;

      (b)     The plaintiff by counterclaim shall pay the costs, including any reserved costs, of the first, second, third, fourth, fifth, sixth, seventh, eighth and ninth defendants by counterclaim, to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON AN INDEMNITY BASIS – where the court has discretion has to costs - whether the fifth defendant should pay the costs of each party on an indemnity basis –where the defendants by counterclaim seek costs for the unsuccessful counterclaim on an indemnity basis – where offers were made to the defendant/plaintiff by counterclaim to settle the claim and counterclaim

PROCEDURE – COSTS – GENERAL RULE–COSTS FOLLOW THE EVENT - COSTS OF WHOLE ACTION – GENERALLY – where the plaintiffs seek costs on the standard basis – where the plaintiffs enjoyed partial success on the claim – whether the defendant/plaintiff by counterclaim should pay costs on a standard or an indemnity basis.

Uniform Civil Procedure Rules 1999 (Qld), r 681(1)

Briginshaw v Briginshaw (1938) 60 CLR 336, cited
Creswick and Ors v Creswick [2010] QSC 339, cited
Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543, cited
FCT v Coombes (1999) 164 ALR 131, cited
Fick v Groves (No 2) [2010] QSC 182, cited
Foots v Southern Cross MineManagement Pty Ltd (2007)…

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Details
AGLC
Creswick v Creswick (No. 2) [2011] QSC 118
Case
[2011] QSC 118
Decision Date

CaseChat Overview and Summary

Creswick v Creswick (No. 2) involved a dispute over costs in a complex litigation scenario. The plaintiffs initiated legal action against several defendants, and some of the defendants filed counterclaims. The plaintiffs enjoyed partial success on their claims, while some counterclaims were unsuccessful. The matter reached the court on an application for costs, with the plaintiffs seeking costs on the standard basis and the defendants by counterclaim seeking costs on an indemnity basis. The court had to determine the appropriate allocation of costs based on the general rule that costs follow the event and the discretion available to the court in exceptional circumstances.

The legal issues before the court were whether the fifth defendant should pay the costs of each party on an indemnity basis and whether the plaintiffs by counterclaim should pay the costs of the defendants by counterclaim on a standard or indemnity basis. The court considered the offers made to settle the claim and counterclaim, the success of the parties, and the principles of costs in Australian law. The court examined the proportionality of the costs and the discretion available in exceptional circumstances to order costs on an indemnity basis.

In its reasoning, the court held that the plaintiffs would pay the defendant's costs of the application filed on 29 October 2010 on the standard basis. The plaintiff by counterclaim would pay the costs of the tenth defendant by counterclaim on the indemnity basis. The court further ruled that the defendant would pay 75 per cent of the plaintiffs’ costs of the claim on the standard basis, and the plaintiff by counterclaim would pay the costs of the first to ninth defendants by counterclaim on the standard basis. The court found that the general rule of costs following the event was appropriate, with limited exceptions for indemnity costs in exceptional circumstances.

The final orders of the court were that the plaintiffs would pay the defendant’s costs of the application filed on 29 October 2010 on the standard basis. The plaintiff by counterclaim would pay the costs of the tenth defendant by counterclaim on the indemnity basis. The defendant would pay 75 per cent of the plaintiffs’ costs of the claim on the standard basis, and the plaintiff by counterclaim would pay the costs of the first to ninth defendants by counterclaim on the standard basis. The court's decision balanced the success of the parties with the principles of costs in Australian law, providing clarity on the allocation of costs in the litigation.

Orders

Orders of the court

1. The plaintiffs shall pay the defendant’s costs of and incidental to the application filed 29 October 2010 on the standard basis;

2. The plaintiff by counterclaim shall pay the costs of the tenth defendant by counterclaim of and incidental to defending the counterclaim against the tenth defendant by counterclaim, such costs to be paid on the indemnity basis;

3. Otherwise:

(a) The defendant shall pay 75 per cent of the plaintiffs’ costs of the claim, including any reserved costs, on the standard basis;

(b) The plaintiff by counterclaim shall pay the costs, including any reserved costs, of the first, second, third, fourth, fifth, sixth, seventh, eighth and ninth defendants by counterclaim, 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

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Ratio Decidendi

Legal Principle Established

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