Harcombe v Thorne - [2016] QSC 78

SUPREME COURT OF QUEENSLAND

CITATION:

Harcombe & Anor v Thorne & Anor [2016] QSC 78

PARTIES:

DANIEL CRAIG HARCOMBE

(first plaintiff)
and
HECKER PTY LTD
ACN 113 703 996 as trustee for THE DANIEL HARCOMBE FAMILY TRUST

(second plaintiff)
v
CENAN OZLEM THORNE
(first defendant)

and
JRDT PTY LTD
ACN 121 102 958 as trustee for THE THORNE FAMILY TRUST

FILE NO:

SC No 639 of 2013

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

8 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Applegarth J

ORDER:

1. The plaintiffs pay the defendants’ costs of and incidental to the application.

2. The costs to be fixed in accordance with paragraphs [12] and [13] of these reasons.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY – where the applicants were substantially successful in their application for security for costs, which was opposed by the respondents – whether the costs order in the applicants’ favour should be discounted to reflect the respondents’ partial success on the quantum of the security to be provided – whether costs should be fixed

SOLICITORS:

Russells for the applicants/defendants

Morgan Conley for the respondents/plaintiffs

I granted the defendants’ application for security for costs and ordered security in the amount of $55,000. I now have to make an appropriate order in relation to the costs of the application. Sensibly, the parties did not wish to be heard in person on the issue of costs, and were content for the matter to be determined by me on the basis of written submissions which were emailed to my Associate.
The defendants submit that there is no reason why the plaintiffs should not pay the costs of unsuccessfully opposing the application.
The plaintiffs accept that costs should follow the event, but submit that there should be a reduction in the defendants’ costs because of the “counterclaim-associated portion of the application”. As noted in my oral judgment, it was appropriate in arriving at an amount by way of security to adjust the costs estimate on account of costs associated only with the counterclaim. The plaintiffs suggested a reduction of 50 per cent; the defendants’ evidence was that the proportion would be 25 per cent to 30 per cent. I adopted a reduction of one third.
Rule 681(1) provides that the costs of a proceeding are in the discretion of the court but follow the event, unless the court orders otherwise. The event, in this case, is the order I made granting security for costs. In BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No 2),[1] McMurdo J, following early authority, stated that:
“Notwithstanding that the court has power to deprive a successful party of costs, or even order a successful party to pay costs, that is a course to be taken in unusual cases and with a degree of hesitancy.”[2]
His Honour reiterated the view that:

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: [2016] QSC 78
Decision Date: 8 April 2016

CaseChat Overview and Summary

The plaintiffs in this case, Harcombe, sought security for costs from the defendants, Thorne, who opposed the application. The dispute came before the court, which granted the plaintiffs' application for security for costs but allowed the defendants partial success on the quantum of the security to be provided. The court was tasked with determining whether the costs order in the plaintiffs’ favour should be adjusted to account for the defendants' partial success and whether the costs should be fixed.

In assessing the appropriate costs order, the court considered the general principle that costs follow the event, which means that the unsuccessful party in a legal proceeding typically bears the costs of the successful party. However, the court also noted that the plaintiffs were substantially successful in their application for security for costs, despite the defendants achieving some success on the quantum issue. The court concluded that the costs order should reflect the plaintiffs’ substantial success but recognised the need to consider the defendants' partial success in setting the quantum of the security. Consequently, the court decided to fix the costs in a manner that appropriately reflected both parties' successes and failures in the proceedings.

The court ordered that the plaintiffs pay the defendants' costs of and incidental to the application, with the specific amounts to be determined in accordance with the details outlined in paragraphs [12] and [13] of the reasons for judgment. This decision highlights the court's approach to balancing the costs implications of partial success in security for costs applications.

Orders

Orders of the court

1. The plaintiffs pay the defendants’ costs of and incidental to the application.

2. The costs to be fixed in accordance with paragraphs [12] and [13] of these reasons.

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:	Harcombe & Anor v Thorne & Anor [2016] QSC 78
PARTIES:	DANIEL CRAIG HARCOMBE (first plaintiff) and HECKER PTY LTD ACN 113 703 996 as trustee for THE DANIEL HARCOMBE FAMILY TRUST (second plaintiff) v CENAN OZLEM THORNE (first defendant) and JRDT PTY LTD ACN 121 102 958 as trustee for THE THORNE FAMILY TRUST
FILE NO:	SC No 639 of 2013
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	8 April 2016
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Applegarth J
ORDER:	1. The plaintiffs pay the defendants’ costs of and incidental to the application. 2. The costs to be fixed in accordance with paragraphs [12] and [13] of these reasons.
CATCHWORDS:	PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY – where the applicants were substantially successful in their application for security for costs, which was opposed by the respondents – whether the costs order in the applicants’ favour should be discounted to reflect the respondents’ partial success on the quantum of the security to be provided – whether costs should be fixed
SOLICITORS:	Russells for the applicants/defendants Morgan Conley for the respondents/plaintiffs