Davis v Perry O'Brien Engineering Pty Ltd (No 2)

SUPREME COURT OF QUEENSLAND

CITATION:

Davis v Perry O’Brien Engineering Pty Ltd (No 2) [2016] QSC 285

PARTIES:

ROY STEVEN DAVIS and COLLEEN JOYCE DAVIS

(applicants)

v
PERRY O’BRIEN ENGINEERING PTY LTD
ACN 077 375 207

(respondent)

FILE NO:

SC No 5928 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Applegarth J

ORDER:

1.       The plaintiffs pay the first defendant’s costs of and incidental to the hearing on 5 August 2016 in respect of the originating application filed 16 June 2016, including the costs reserved by the order made on 23 June 2016, to be assessed on the standard basis.

2.       The plaintiffs pay the first defendant’s costs of and incidental to the application for costs filed 24 October 2016, to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INTERLOCUTORY PROCEEDINGS – where applicants applied for a declaration of trust and were unsuccessful – where the originating application was, in substance, an application for summary judgment – where the respondent was wholly successful in defending that application – where respondent had contended at an early stage that the proceeding should continue as if commenced by claim, and such an order was made – whether costs should reflect the respondent’s success on the contested hearing – whether costs should be reserved

Uniform Civil Procedure Rules 1999 (Qld), r 698

State of Qld v Litz [1993] 1 Qd R 343

State of Qld v Nixon [2002] QSC 296

COUNSEL:

N H Ferrett for the applicants

P D Tucker for the respondent

SOLICITORS:

Project Legal for the applicants

Shand Taylor for the respondent

1. In a judgment delivered on 2 September 2016,[1] I:

   (a)     declined to grant the declaration sought by the applicants in paragraph 1 of the originating application filed 16 June 2016; and

   (b)     ordered that the proceeding continue as if commenced by way of claim.

   I directed the parties to confer for the purpose of resolving or narrowing the issues in dispute and agreeing steps for the just and expeditious resolution of the real issues at a minimum of expense.  I reserved the question of costs, but indicated that I expected the parties to resolve the issue of costs without the need for a further hearing.  The parties were able to agree directions, but have been unable to agree on an appropriate costs order.  The respondent seeks its costs, and the parties are agreed that the respondent’s application for costs can be decided without an oral hearing.

   [1]     Davis v Perry O’Brien Engineering Pty Ltd [2016] QSC 202.

Submissions

1. The respondent relies upon the success which it enjoyed on the issues which I was required to decide.  Two substantial issues arose for determination. The first was whether cl 2.2 of the Deed created a trust in favour of the applicants in relation to the “Stock Sale Proceeds”.  That issue might…