Group Kildey Pty Ltd v J M Kelly (Project Builders) Pty Ltd
[2005] QSC 287
•13 October 2005
SUPREME COURT OF QUEENSLAND
CITATION:
Group Kildey Pty Ltd v J M Kelly (Project Builders) Pty Ltd [2005] QSC 287
PARTIES:
GROUP KILDEY PTY LTD (ACN 010 207 480)
(applicant)
v
J M KELLY (PROJECT BUILDERS) PTY LTD
(ACN 010 280 412)
(respondent)FILE NO/S:
BS 5377 of 2005
DIVISION:
Trial Division
PROCEEDING:
Application
DELIVERED ON:
13 October 2005
DELIVERED AT:
Brisbane
JUDGE:
Mackenzie J
ORDER:
Order for costs made on 23 September 2005 to include reserved costs
MACKENZIE J:In this matter the applicant was successful in having a statutory demand set aside under s 459G of the Corporations Act 2001. An order for costs was made in its favour. Under UCPR 699, reserved costs would follow the event in the absence of any other order.
The parties were given leave to make written submissions concerning the reserved costs. The order reserving costs was made by consent as was the adjournment. It is therefore rather incongruous that there is an attempt to agitate issues now that would have been more appropriately raised on the day if it is alleged that one side had caused costs to be thrown away.
Apart from this, the respective submissions do not expose any compelling reason to depart from the usual rule that reserved costs should follow the event. The application was made on 5 July 2005 with a return date of 25 July 2005. Significant affidavit material was being served by both parties late in the week immediately preceding the Monday hearing date and some affidavits by way of response on the morning of the hearing. The complaint that one deponent was not available for cross-examination on the day of hearing could have effectively been dealt with under UCPR 439 had the adjournment not been agreed to.
The reason why it was necessary to adjourn the hearing was not markedly different from many others. No case has been made for an order exempting the order for reserved costs from the ordinary application of UCPR 699.
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