Gekko Developments Pty Ltd v Centa Company Pty Ltd (No 4) - [2015] QSC 183

SUPREME COURT OF QUEENSLAND

CITATION:

Gekko Developments Pty Ltd v Centa Company Pty Ltd (No 4) [2015] QSC 183

PARTIES:

GEKKO DEVELOPMENTS PTY LTD
ACN 139 260 674

(plaintiff)

v
CENTA COMPANY PTY LTD
ACN 010 059 944

(defendant)

FILE NO/S:

SC No 7936 of 2012

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 June 2015

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Philip McMurdo J

ORDER:

The plaintiff and Darren Brown pay the defendant’s costs of and incidental to the proceedings to be assessed upon the standard basis.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where the defendant should have its costs – whether the plaintiff’s conduct in continuing to prosecute the case so unreasonable as to warrant indemnity costs – where the plaintiff and another individual were ordered to pay the defendant’s costs of the proceeding assessed on the standard basis

Deepcliffe Pty Ltd & Anor v The Council of the City of Gold Coast & Anor[2001] QCA 396, cited
Gekko Developments Pty Ltd v Centa Company Pty Ltd (No 3) [2015] QSC 87, cited
Reeves v O’Reily[2013] QCA 285, cited
Tector v FAI General Insurance Co Ltd [2001] 2 Qd R 463; [2000] QCA 426, cited

COUNSEL:

No submission for the plaintiff

M Trim for the defendant

SOLICITORS:

ClarkeKann Lawyers for the plaintiff

McCullough Robertson Lawyers for the defendant

On 16 April 2015, I gave judgment dismissing the plaintiff’s claim. I directed that written submissions be provided as to costs and this judgment deals with that subject.
I have received a written submission for the defendant but none for the plaintiff. The defendant submits that it should have its costs assessed on the standard basis until 27 January 2015 and from then on the indemnity basis. That was the date on which its solicitors wrote to the plaintiff’s solicitors offering to settle the proceedings on the basis that the defendant pay $70,000 towards the plaintiff’s claim, pay a further $70,000 on account of the plaintiff’s costs and forego the enforcement of previous costs orders to the value of $69,476.95.
Plainly, the defendant should have its costs. But as its submissions rightly concede, the fact that the outcome was better for it than its Calderbank offer need not result in an order for indemnity costs.[1]
[1] Reeves v O’Reily [2013] QCA 285, 2 [3] citing Deepcliffe Pty Ltd & Anor v The Council of the City of Gold Coast & Anor [2001] QCA 396.
The defendant submits that an order for costs on the indemnity basis from the date of its offer is warranted because the plaintiff’s conduct in continuing the proceeding was, in effect, “plainly unreasonable”, as the necessary conduct of a party in this context was described in Tector v FAI General Insurance Co Ltd.[2] The submissions for the defendant emphasised several factors which together made the…

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: [2015] QSC 183
Decision Date: 26 June 2015

CaseChat Overview and Summary

Gekko Developments Pty Ltd, the plaintiff, brought a proceeding against Centa Company Pty Ltd, the defendant, in relation to a dispute over the ownership of a property. The case was heard in the Supreme Court of Queensland. The plaintiff argued that it had a valid claim to the property, while the defendant maintained that the plaintiff had no legal right to the property and sought a declaration to that effect.

The central legal issue before the court was whether the plaintiff’s conduct in continuing to prosecute the case was so unreasonable as to warrant an order for costs on an indemnity basis. The defendant argued that the plaintiff’s conduct in pursuing the case, despite clear evidence that it had no valid claim to the property, was unreasonable and warranted indemnity costs. The court considered the conduct of the plaintiff in light of the legal principles governing costs orders.

The court found that while the plaintiff’s conduct in continuing to prosecute the case was unreasonable, it did not warrant an order for costs on an indemnity basis. The court held that the plaintiff and another individual, Darren Brown, should be ordered to pay the defendant’s costs of the proceeding assessed on the standard basis. The court found that the plaintiff’s conduct was unreasonable but not egregious enough to warrant the more severe penalty of indemnity costs.

The court ordered that the plaintiff and Darren Brown pay the defendant’s costs of and incidental to the proceedings to be assessed upon the standard basis. This order reflected the court’s view that while the plaintiff’s conduct was unreasonable, it did not warrant the severest penalty of indemnity costs. The court’s decision highlights the importance of the principle that costs orders should be proportionate to the conduct of the parties involved in the proceeding.

Orders

Orders of the court

The plaintiff and Darren Brown pay the defendant’s costs of and incidental to the proceedings to be assessed upon the standard basis.

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:	Gekko Developments Pty Ltd v Centa Company Pty Ltd (No 4) [2015] QSC 183
PARTIES:	GEKKO DEVELOPMENTS PTY LTD ACN 139 260 674 (plaintiff) v CENTA COMPANY PTY LTD ACN 010 059 944 (defendant)
FILE NO/S:	SC No 7936 of 2012
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	26 June 2015
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGE:	Philip McMurdo J
ORDER:	The plaintiff and Darren Brown pay the defendant’s costs of and incidental to the proceedings to be assessed upon the standard basis.
CATCHWORDS:	PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where the defendant should have its costs – whether the plaintiff’s conduct in continuing to prosecute the case so unreasonable as to warrant indemnity costs – where the plaintiff and another individual were ordered to pay the defendant’s costs of the proceeding assessed on the standard basis Deepcliffe Pty Ltd & Anor v The Council of the City of Gold Coast & Anor[2001] QCA 396, cited Gekko Developments Pty Ltd v Centa Company Pty Ltd (No 3) [2015] QSC 87, cited Reeves v O’Reily[2013] QCA 285, cited Tector v FAI General Insurance Co Ltd [2001] 2 Qd R 463; [2000] QCA 426, cited
COUNSEL:	No submission for the plaintiff M Trim for the defendant
SOLICITORS:	ClarkeKann Lawyers for the plaintiff McCullough Robertson Lawyers for the defendant