Deeson Heavy Haulage Pty Ltd v Cox (No 2)

Deeson Heavy Haulage Pty Ltd, the plaintiff, brought an action against Cox and others, the defendants, to recover damages for a number of breaches of contract and other torts. The case was heard in the Supreme Court of Queensland. The plaintiff sought to recover costs associated with the proceedings, and the defendants argued that they should not be liable for costs due to the plaintiff's unsuccessful application for an interlocutory injunction and the subsequent offer of compromise which contained an invalid condition.

The court was required to determine whether the formal offer of compromise was efficacious under the Rules and whether the plaintiff was the successful party in the proceedings. The court also had to consider whether the plaintiff's conduct warranted an order for costs against them, and if so, the extent of that order.

The court found that the formal offer of compromise was not efficacious due to the invalid condition requiring the entry of a Deed. The court also found that the defendants were successful on the majority of issues, and therefore the plaintiff was not the successful party. The court held that the plaintiff's conduct warranted an order for costs against them, but limited the order to 20% of the costs of preparation for trial and up to and including the third day of the trial. The court also ordered that the plaintiff pay the defendants' costs from and including the fourth day of the trial onwards, and limited the amount the director of the plaintiff company could be liable for to $200,000.

The court made an order that unless submissions are received on or before 4 pm on 10 November, the orders will be as follows: there will be no order as to costs of the plaintiff’s application nor any order as to the expenses incurred in the execution of the search order; there will be no order as to costs of the hearing in the Supreme Court of Rockhampton; the defendants will pay the plaintiff's costs of the proceedings assessed on the standard basis, limited to 20% of the costs of preparation for trial and up to and including the third day of the trial; the plaintiff will pay the defendants' costs of the proceedings assessed on the standard basis, limited to 80% of the costs of preparation for trial and from and including the fourth day of the trial onwards; the director of the plaintiff company will pay the defendants' costs of proceedings in accordance with these orders but limited to an amount not exceeding $200,000; and the defendants be entitled to offset any costs payable by them to the plaintiff against the amount of any costs payable by the plaintiff to the defendants. The parties have liberty to apply within 7 days.