De Costa v Sankey - [2005] QDC 102

No judgment structure available for this case.

[2005] QDC 102

DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No BD4117 of 2004

FRANCIS DE COSTA Plaintiff
and
BRETT PETER SANKEY First Defendant
and
B.P.S.WOODCHIP SUPPLIES PTY LTD Second Defendant
ACN 082 195 408
and
CRAWLEY CORPORATION PTY LTD Third Defendant
ACN 009 902 998
and
CRAWLEY INVESTMENTS (QLD) PTY LTD Fourth Defendant
ACN 063 753 873
BRISBANE
..DATE 28/04/2005
ORDER

28042005 T12-14/JB27 M/T CMS45/2005 (Robin DCJ)

CATCHWORDS: Uniform Civil Procedure Rules, r 157, r 161, 1
r 293, r 686, r 704 - further and better particulars ordered
of damage allegedly done to the plaintiff's acreage property,
for which the applicant was letting agent, especially as to
locations - summary judgment against the plaintiff for another
defendant sued as letting agent which had not contracted with
the plaintiff at all - indemnity costs awarded from the date
(of the disclosure) when the plaintiff should have been fully

aware. 10
HIS HONOUR: One of the aspects of the Court's business in
this proceeding today is the third defendant's application 20
under Rule 161 for better particulars of the plaintiff's
amended statement of claim which was filed on the 22nd of
September 2004.
The third defendant is sued as the managing agent of premises 30
at 499 Redland Bay Road, Capalaba, which were let to the
second defendant company. The two of them were parties to a
lease document. The first defendant is claimed to have been
the occupant of a house on the property.
40

The plaintiff is said in his solicitor's affidavit to be a merchant seaman domiciled in France who has few, if any opportunities to visit the property and is perhaps in ignorance of many things that happen in relation to it.
50

The amended statement of claim asserts that a great deal of damage has been done to the property by the felling of trees and leaving remains of them there as rubbish, by removing and destroying gardens, allowing erosion to occur and the like. 28042005 T12-14/JB27 M/T CMS45/2005 (Robin DCJ)

2

ORDER

60

1

The first defendant is sued in trespass and nuisance, the second defendant as the tenant; the third defendant for negligence and breach of its duty as managing agent.

10

A request for particulars elicited a substantially informative response but, in some respects, the third defendant is still dissatisfied. There has been detailed examination of particular aspects of the answers and debate as to whether or not they are adequate.

20

The gravamen of Mr Jennings' argument is in paragraphs 10,11 and 12 of his outline of submissions:
"10. Further particulars of the Amended Statement of Claim

dated 4 January 2005 have been provided to the Third and 30
Fourth Defendants.

11. A party must include in a pleading particulars necessary
to, inter alia, (a) define the issues for trial, (b)
prevent surprise, and (c) enable the other party to
plead: r.157 UCPR.

12. The particulars so provided are adequate to define the
issue of damages for trial and to prevent surprise to the

Defendants. Insofar as the Third and Fourth Defendants 40
seek particulars by way of the production of photographs
or diagrams, such request is:
12.1 Not an appropriate request for particulars;
12.2 A request for disclosure;
12.3 A request for evidence."

It is a matter of some amazement to the Court that the parties 50

have subjected themselves to the trouble and cost of arguing matters out in the way they have, as Mr Jennings has made it clear that notwithstanding that the defendants' connection

3 ORDER 60

28042005 T12-14/JB27 M/T CMS45/2005 (Robin DCJ)

with the property came to an end in November 2000, the 1
unsatisfactory circumstances complained of still exist,
meaning that anyone interested (with appropriate permission)
may visit the property and see exactly what the situation is.

10

Paragraph 15 in the amended statement of claim is:
"Damage Suffered by the Plaintiff
15. As a consequence of the matters aforesaid the Plaintiff
has suffered loss and damage in the sum of $85,000 being
the cost of rectification and restoration of the

premises, the Particulars of which are as follows: 20
(a) The cost of removing the rubbish on the premises;
(b) The cost of removing weeds from the premises;
(c) The cost of slashing the property;
(d) The cost of replacing the surface soil material;
(e) The cost of returfing the lawn on the premises; 30
(f) The cost of replanting trees to an equivalent size
and quality as the trees removed by the First
Defendant and Second Defendant, as pleaded herein;

(g) The replacement of gardens and plants removed or

destroyed by the First Defendant or the Second
Defendant, as particularised herein."

40

The Court has been told that the costs referred to are yet to be incurred, the work is yet to be done. While the plaintiff is correct technically in the assertion that photographs and
diagrams and the like should not be sought by request for

particulars, there seems to me not the slightest doubt that 50

those represent the best means by far of providing information
as to what the claim is all about.
28042005 T12-14/JB27 M/T CMS45/2005 (Robin DCJ) 4 ORDER 60

What I have been saying ought to be qualified by the 1
observation that, if the situation of the property is
unsatisfactory as the plaintiff claims, the responsibility for
that may rest with not with the defendants but with others and
possibly those who have been subsequent tenants.

10

The argument has been somewhat difficult for the Court and responsibility for that, it seems to me, rests with both sides of the record. I was invited to consider a letter of Carter Newell of the 2nd of February 2005 as sufficiently setting out

20

everything the Court needed to know about the request for
particulars and the answers that were given. That proved to
be misleading in at least one respect where the letter
indicates that erosion requiring rectification was supposedly
particularised as occurring "at the bottom end of the

30

property".
This was an unfair misrepresentation of the response to the request for particulars which identified the vicinity of a pond at the bottom end of the property. It seems to be common

40

ground, mercifully, that there is only one pond. The Court
has not been permitted to know what the size of the property
is - which means that it cannot form any clear view as to how
helpful a reference to the bottom end of the property might be
in the context of soil having to be replaced, turf replaced

50

and the like. The property is described as "acreage".

Objection is taken to answers to the effect that rubbish was
dumped near the fence line on the basis that the fence line
28042005 T12-14/JB27 M/T CMS45/2005 (Robin DCJ) 5 ORDER 60

may be very extensive and a reader would not know which 1

particular fence line was referred to. All of these matters could efficiently be clarified, it seems to me, by diagrams.
Essentially I propose to resolve the particulars issue by

10

ordering the plaintiff to give the particulars that the third
defendant has requested. In part this simply represents
following the line of least resistance. I am not entirely
comfortable that the defendant is suffering from the
mystification that has been asserted.

20

In some respects there is a clear indulgence to the third defendant, for example, in requiring particulars to be given of a request which never should have been made in the form it was, as an inquiry "whether the oral direction was in

30

person/via telephone". Understandably the response was that "same was in person/via telephone" which does not inform the third defendant of what it wished to know. The Court has gone
to considerable trouble to refine the fourth defendant's
original request for particulars (in the interests of getting

40

the issues it has to deal with clarified).
A number of the requests were answered "N/A", for example those inquiring about which garden beds were removed or destroyed as alleged. It is annoying to find that those

50

completely unhelpful answers were picked up in response to a
later part of the request as follows: "A description in detail
of the gardens removed is provided in paragraph 8(a) hereof."
28042005 T12-14/JB27 M/T CMS45/2005 (Robin DCJ) 6 ORDER 60

I have been making the comments I have because I apprehend 1

they may be relevant to the appropriate costs order in respect of the application for particulars. On that application these will be the orders.

10

The plaintiff must give particulars of:-
1. Whether he gave the oral direction to Barbara Reid
mentioned in the amended statement of claim (ASC) 6(b)
thereof (a) by telephone or (b) when both were physically

20

present.
2. The names of the tenants and periods of their tenancies with respect to paragraph 13A of the ASC.

30

3. Describing in words or other sufficient ways:

(i) Which trees and where were cut down as alleged in ASC
paragraph 10(a).

40

(ii) Which (if any) fence line on the subject property
and which parts thereof had rubbish as referred to in
paragraph 10(b) of the ASC dumped on or near them.
(iii) The location of garden beds (a) removed (b)

50

destroyed as referred to in paragraph 10(c).
(iv) Every area where erosion occurred as alleged in
paragraph 10A subparagraph (a) of the ASC and the extent

7 ORDER 60

28042005 T12-14/JB27 M/T CMS45/2005 (Robin DCJ)

of it. 1
(v) The nature and precise location of weeds removed or
to be removed (specifying which) as alleged in paragraph
15(b) of the ASC.

10

(vi) The precise area or areas where slashing was or is
to be (specifying which) carried out in respect of
paragraph 15(c) of the ASC.

20

(vii) Where surface soil material was or is to be
(specifying which) replaced for the purposes of 15(d) of
the ASC.
(viii) Where lawn was or is to be (specifying which)

30

returfed for the purposes of 15(e) of the ASC.
(ix) The size and location immediately prior to the time of removal of trees as referred to in paragraph 15(f) of the ASC.

40

(x) The precise location of the gardens and details
including the immediately previous location of the plants
allegedly removed or destroyed in 15(g) of the ASC.

50

I direct that any item among the particulars ordered may be dealt with by the plaintiff by:(a) deletion of the paragraph to be particularised from the ASC or (b) the filing of an affidavit by the plaintiff to the effect that he cannot give 28042005 T12-14/JB27 M/T CMS45/2005 (Robin DCJ)

8

ORDER

60

the particulars and that there are no means open to him of 1
obtaining the relevant information.

I am conscious of Mr Jennings' point that the Court should be careful about ordering evidence to be given under the guise of

10

particulars. This case probably comes on a continuum whereby
a plaintiff asserting that his finger had been injured in an
accident would certainly be ordered to particularise which
finger it was and whereby a plaintiff asserting defective
building work in a house (for example, to do with floorboards)

20

would be required to particularise where it was rather than
rely on general descriptions as Mr Jennings says the plaintiff
is entitled to do here.
All things considered, I have made the judgment that the third

30

defendant, which after all was faced with this claim for the
first time long after the event, ought to be provided with
full information. I suspect the third defendant knows more
than it has let on. It seems there have been photographs
exchanged and the like in the past.

40

My inclination in respect of the particulars application is to order that they be costs in the cause.
...

50

(After further argument).

Costs reserved.
28042005 T22/SAC8 M/T CMS45/2005 (Robin DCJ) 9 ORDER 60

The Court is now concerned with that part of the third and 1
fourth defendants' application which seeks a summary judgment
in the fourth defendant's favour against the plaintiff
pursuant to rule 293. There has been no resistance to that

relief being granted but an argument about whether the fourth 10
defendant should get its costs on the indemnity basis must be
resolved.
The similarity of names so far as the third and the fourth 20
defendants are concerned will be noted. They are sued by the
plaintiff on the basis of breach of duty as a letting agent
whereby the plaintiff's premises which were let out to the
second defendant and apparently occupied by the first
defendant were damaged. 30
The truth of the matter is that the third defendant alone was
the agent mentioned in a standard form REIQ property
management agreement made with the plaintiff as principal. 40
The agreement provided that it commences on 24th February 1997
which has been taken as the date of the agreement.
After naming the agent that agreement adds, "Trading as Ray
50

White Property Management". Now that it is established that the fourth defendant had no contractual or other relations

with the plaintiff, there are no standing allegations against
28042005 T22/SAC8 M/T CMS45/2005 (Robin DCJ) 10 ORDER

it. An amended statement of claim from September last year 1
confines relevant allegations to the third defendant, yet it
has taken until now for the matter to be raised and dealt
with. The plaintiff seems curiously resistant to following

what one would think would be the simpler and cheaper course 10
of discontinuing.
The claim commenced in the Magistrates Court on the 4th June
2002 with a claim and statement of claim pleading that "on or 20
about 24 February 1997 the plaintiff entered an agreement with
the third defendant and fourth defendant by virtue of Ray
White for the management of the premises."
The preceding paragraph pleads incorporation and that the 30
third defendant and the fourth defendant "carried on the
business of Ray White Cleveland". That was a correct
description of the situation. Ray White Cleveland is a
registered business name in the proprietorship of both the 40
third and fourth defendants. No doubt a search was made which
gave the plaintiff and/or his solicitor that information. One
would assume that the property management agreement was also
available.
50
A notice of intention to defend and defence were filed in the

Magistrates Court on the 9th July 2002. That had been
28042005 T22/SAC8 M/T CMS45/2005 (Robin DCJ) 11 ORDER

preceded by a request for particulars dated 27th June 2002 to 1
which the plaintiff did not respond until the 18th September
2002.

The request ought to have alerted the plaintiff to the 10
situation which has now become clear. It is sought in respect
of the statement of claim "as to paragraph 4 full and precise
particulars of the basis on which the fourth defendant
(Crawley Investments (Queensland) Pty Ltd) carried on the 20
business of Ray White Cleveland" and also "the usual
particulars of the agreement entered into between the
plaintiff and the third and fourth defendant."
The plaintiff's solicitors apparently did not wonder why that 30
request for particulars inquired about the fourth defendant
and not about the third defendant. The distinction was drawn
in the filed defence which admits "that the third defendant
carried on the business of Ray White Cleveland but denies that 40
the fourth defendant carried on the business of Ray White
Cleveland because the allegation is not true."
A search in evidence before the Court shows the proprietorship
50
of the registered business name as indicated above. However,
that business name does not feature in the property management

agreement in any way. The defence clearly placed the
28042005 T22/SAC8 M/T CMS45/2005 (Robin DCJ) 12 ORDER

plaintiff on notice that the defendant admitted the agreement 1
made on or about 24th February 1997 and that the fourth
defendant denied that it had done so "because the allegation
is not true." Mr Crawley's affidavit now shows that the

property management business is the third defendant's and that 10
the fourth defendant's business is selling real estate.
The next pleading was a reply filed the 1st August 2002. It
denied each and every allegation in the third and fourth 20
defendants' defence "save for facts set out in the plaintiff's
statement of claim admitted."
The particulars were supplied. The plaintiff indicated that a
business name search was its basis for asserting that the 30
fourth defendant carried on the business of Ray White
Cleveland. It is a little uncertain whether the response is
communicating that the plaintiff and his solicitors actually
did not have the property management agreement - whether it 40
was the subject of the reference "which contract is yet to be
disclosed before further particulars can be given".
On the December 2002 disclosure by list was made by the third
50

and fourth defendants. The property management agreement was disclosed and presumably inspected not long afterwards by the

plaintiff's solicitors.
28042005 T22/SAC8 M/T CMS45/2005 (Robin DCJ) 13 ORDER

Until very recently they have remained determined to pursue 1
the fourth defendant. Just why is not clear. Perhaps there
has been some suspicion that it truly is involved in some way.

The leading case in respect of costs being awarded on the 10
indemnity basis described in rule 704 is Colgate Palmolive Co
v Cussons Pty Ltd (1993) 118 ALR 248.
The justification for provisions being made for costs to be 20
assessed on that basis was expressed eloquently by Rogers J
and Handley JA in passages quoted in Colgate Palmolive at page
251. As Rogers J put it, "There is now a yawning gap between
costs recovered by a successful party from the other party on
a party and party taxation of costs and the costs payable by 30
the successful party to its own solicitors".
From what one hears, concerns his Honour had in 1987 have been
exacerbated over the years. Justice White noted in Di Carlo v 40
Dubois [2002] QCA 225 the increasing number of applications
being made for indemnity costs without completing the picture
by revealing whether or not more such orders are being made.
The present is not one of the categories identified in rule
50
704 for the awarding of costs on the indemnity basis.

One must turn to the general law - a list of instances of the
order being made appears at page 257 in Colgate Palmolive.
28042005 T22/SAC8 M/T CMS45/2005 (Robin DCJ) 14 ORDER

The one on which Mr Kidston, appearing for the fourth 1
defendant, relies is "where proceedings are commenced or
continued in wilful disregard to known facts or clearly
established law".

10

It seems to me that the situation was reached in these circumstances. I do not think the plaintiff can be criticised for commencing his claim as he did. I think it might be unreasonable to have required discontinuance or some similar step forthwith upon the filing of the defence in the

20

Magistrates Court and the filing of the reply. By the end of 2002, however, the plaintiff and his solicitors had all the information necessary to appreciate that no claim could be made against the fourth defendant and possibly sustained.

30

The "Ray White Cleveland" aspect was really a red herring which, as it happens, the plaintiff introduced. The fourth defendant is entitled to all of the sympathy which Rogers J and Handley JA gave vent to, but I accept that that is not a sufficient basis for an award of indemnity costs being made

40

that a defendant which shows it ought never have been sued in
the first place is put to an inordinate amount of costly
trouble to extricate itself. It would be different if the
plaintiff could show no justification for suing that
defendant.

50

There is a penal aspect about indemnity costs in a context such as the present and the question is one of the justice of requiring the party which must pay the costs to pay them on a 28042005 T22/SAC8 M/T CMS45/2005 (Robin DCJ)

15

ORDER

basis which is still an exceptional one. On that approach my 1
judgment is that the plaintiff ought to pay the fourth
defendant's costs on that basis from the first of January 2003
which allows a reasonable time to inspect and digest the
contents of disclosed document number 67.

10

...
HIS HONOUR: So, in this particular application, the order will be that the fourth defendant have summary judgment

20

against the plaintiff pursuant to rule 293 on the plaintiff's
claim with costs of the proceedings which are to be assessed
on the standard basis until 31st of December 2002 and on the
indemnity basis from the 1st of January 2003.

30

I ought to observe that the assessment is likely to be an unusually difficult job for the Registrar. He or she is likely to be attempting to dissect out the costs of particular work which ought to be allocated against the fourth defendant as opposed to the third defendant. It remains to be seen how

40

work, if any, which was done only once, will be dealt with.
...
HIS HONOUR: For purposes of rule 686, those costs exclude any

50

costs ordered and assessed or fixed in the Magistrates Court;
they include the costs of the present application.

-----

16 ORDER

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Citations

De Costa v Sankey [2005] QDC 102

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

0

Di Carlo v Dubois [2002] QCA 225

Oshlack v Richmond River Council [1998] HCA 11

FRANCIS DE COSTA	Plaintiff
and
BRETT PETER SANKEY	First Defendant
and

CATCHWORDS: Uniform Civil Procedure Rules, r 157, r 161,	1
r 293, r 686, r 704 - further and better particulars ordered
of damage allegedly done to the plaintiff's acreage property,
for which the applicant was letting agent, especially as to
locations - summary judgment against the plaintiff for another
defendant sued as letting agent which had not contracted with
the plaintiff at all - indemnity costs awarded from the date
(of the disclosure) when the plaintiff should have been fully
aware.	10
HIS HONOUR: One of the aspects of the Court's business in
this proceeding today is the third defendant's application	20
under Rule 161 for better particulars of the plaintiff's amended statement of claim which was filed on the 22nd of September 2004.
The third defendant is sued as the managing agent of premises	30
at 499 Redland Bay Road, Capalaba, which were let to the second defendant company. The two of them were parties to a lease document. The first defendant is claimed to have been the occupant of a house on the property.
40
The plaintiff is said in his solicitor's affidavit to be a merchant seaman domiciled in France who has few, if any opportunities to visit the property and is perhaps in ignorance of many things that happen in relation to it.
50

dated 4 January 2005 have been provided to the Third and	30
Fourth Defendants.

Defendants. Insofar as the Third and Fourth Defendants	40
seek particulars by way of the production of photographs or diagrams, such request is:
12.1 Not an appropriate request for particulars;
12.2 A request for disclosure;
12.3 A request for evidence."

It is a matter of some amazement to the Court that the parties	50
have subjected themselves to the trouble and cost of arguing matters out in the way they have, as Mr Jennings has made it clear that notwithstanding that the defendants' connection

with the property came to an end in November 2000, the	1
unsatisfactory circumstances complained of still exist, meaning that anyone interested (with appropriate permission) may visit the property and see exactly what the situation is.

premises, the Particulars of which are as follows:	20
(a) The cost of removing the rubbish on the premises;
(b) The cost of removing weeds from the premises;
(c) The cost of slashing the property;
(d) The cost of replacing the surface soil material;
(e) The cost of returfing the lawn on the premises;	30
(f) The cost of replanting trees to an equivalent size

What I have been saying ought to be qualified by the	1
observation that, if the situation of the property is unsatisfactory as the plaintiff claims, the responsibility for that may rest with not with the defendants but with others and possibly those who have been subsequent tenants.

may be very extensive and a reader would not know which	1
particular fence line was referred to. All of these matters could efficiently be clarified, it seems to me, by diagrams.
Essentially I propose to resolve the particulars issue by

I have been making the comments I have because I apprehend	1
they may be relevant to the appropriate costs order in respect of the application for particulars. On that application these will be the orders.

of it.	1
(v) The nature and precise location of weeds removed or to be removed (specifying which) as alleged in paragraph 15(b) of the ASC.

the particulars and that there are no means open to him of	1
obtaining the relevant information.
I am conscious of Mr Jennings' point that the Court should be careful about ordering evidence to be given under the guise of

The Court is now concerned with that part of the third and	1
fourth defendants' application which seeks a summary judgment
in the fourth defendant's favour against the plaintiff
pursuant to rule 293. There has been no resistance to that
relief being granted but an argument about whether the fourth	10
defendant should get its costs on the indemnity basis must be
resolved.
The similarity of names so far as the third and the fourth	20
defendants are concerned will be noted. They are sued by the
plaintiff on the basis of breach of duty as a letting agent
whereby the plaintiff's premises which were let out to the
second defendant and apparently occupied by the first
defendant were damaged.	30
The truth of the matter is that the third defendant alone was
the agent mentioned in a standard form REIQ property
management agreement made with the plaintiff as principal.	40
The agreement provided that it commences on 24th February 1997
which has been taken as the date of the agreement.
After naming the agent that agreement adds, "Trading as Ray
50
White Property Management". Now that it is established that the fourth defendant had no contractual or other relations

it. An amended statement of claim from September last year	1
confines relevant allegations to the third defendant, yet it
has taken until now for the matter to be raised and dealt
with. The plaintiff seems curiously resistant to following
what one would think would be the simpler and cheaper course	10
of discontinuing.
The claim commenced in the Magistrates Court on the 4th June
2002 with a claim and statement of claim pleading that "on or	20
about 24 February 1997 the plaintiff entered an agreement with
the third defendant and fourth defendant by virtue of Ray
White for the management of the premises."
The preceding paragraph pleads incorporation and that the	30
third defendant and the fourth defendant "carried on the
business of Ray White Cleveland". That was a correct
description of the situation. Ray White Cleveland is a
registered business name in the proprietorship of both the	40
third and fourth defendants. No doubt a search was made which
gave the plaintiff and/or his solicitor that information. One
would assume that the property management agreement was also
available.
50
A notice of intention to defend and defence were filed in the

preceded by a request for particulars dated 27th June 2002 to	1
which the plaintiff did not respond until the 18th September
2002.
The request ought to have alerted the plaintiff to the	10
situation which has now become clear. It is sought in respect
of the statement of claim "as to paragraph 4 full and precise
particulars of the basis on which the fourth defendant
(Crawley Investments (Queensland) Pty Ltd) carried on the	20
business of Ray White Cleveland" and also "the usual
particulars of the agreement entered into between the
plaintiff and the third and fourth defendant."
The plaintiff's solicitors apparently did not wonder why that	30
request for particulars inquired about the fourth defendant
and not about the third defendant. The distinction was drawn
in the filed defence which admits "that the third defendant
carried on the business of Ray White Cleveland but denies that	40
the fourth defendant carried on the business of Ray White
Cleveland because the allegation is not true."
A search in evidence before the Court shows the proprietorship
50
of the registered business name as indicated above. However, that business name does not feature in the property management

plaintiff on notice that the defendant admitted the agreement	1
made on or about 24th February 1997 and that the fourth
defendant denied that it had done so "because the allegation
is not true." Mr Crawley's affidavit now shows that the
property management business is the third defendant's and that	10
the fourth defendant's business is selling real estate.
The next pleading was a reply filed the 1st August 2002. It
denied each and every allegation in the third and fourth	20
defendants' defence "save for facts set out in the plaintiff's
statement of claim admitted."
The particulars were supplied. The plaintiff indicated that a
business name search was its basis for asserting that the	30
fourth defendant carried on the business of Ray White
Cleveland. It is a little uncertain whether the response is
communicating that the plaintiff and his solicitors actually
did not have the property management agreement - whether it	40
was the subject of the reference "which contract is yet to be
disclosed before further particulars can be given".
On the December 2002 disclosure by list was made by the third
50
and fourth defendants. The property management agreement was disclosed and presumably inspected not long afterwards by the

Until very recently they have remained determined to pursue	1
the fourth defendant. Just why is not clear. Perhaps there
has been some suspicion that it truly is involved in some way.
The leading case in respect of costs being awarded on the	10
indemnity basis described in rule 704 is Colgate Palmolive Co
v Cussons Pty Ltd (1993) 118 ALR 248.
The justification for provisions being made for costs to be	20
assessed on that basis was expressed eloquently by Rogers J
and Handley JA in passages quoted in Colgate Palmolive at page
251. As Rogers J put it, "There is now a yawning gap between
costs recovered by a successful party from the other party on
a party and party taxation of costs and the costs payable by	30
the successful party to its own solicitors".
From what one hears, concerns his Honour had in 1987 have been
exacerbated over the years. Justice White noted in Di Carlo v	40
Dubois [2002] QCA 225 the increasing number of applications
being made for indemnity costs without completing the picture
by revealing whether or not more such orders are being made.
The present is not one of the categories identified in rule
50
704 for the awarding of costs on the indemnity basis.

The one on which Mr Kidston, appearing for the fourth	1
defendant, relies is "where proceedings are commenced or continued in wilful disregard to known facts or clearly established law".

basis which is still an exceptional one. On that approach my	1
judgment is that the plaintiff ought to pay the fourth defendant's costs on that basis from the first of January 2003 which allows a reasonable time to inspect and digest the contents of disclosed document number 67.