Hestbay Pty Ltd v One Sector Pty Ltd - [2023] QSC 154

SUPREME COURT OF QUEENSLAND

CITATION:

Hestbay Pty Ltd v One Sector Pty Ltd [2023] QSC 154

PARTIES:

HESTBAY PTY LTD (ACN 010 851 073) AS TRUSTEE FOR THE J & F PROPERTY TRUST

(plaintiff)

v
ONE SECTOR PTY LTD (ACN 139 990 891)

(defendant)

AND

EXCEL CONCRETE PTY LTD (ACN 010 891 773)

FILE NO:

9563/21

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

14 July 2023

DELIVERED AT:

Brisbane

HEARING DATE:

14 June 2023

JUDGE:

Freeburn J

ORDER:

1. The costs of the third party proceedings be reserved.

2. The parties be heard on the costs of the application.

CATCHWORDS:

PROCEDURE – COSTS – DISCONTINUANCE OR WITHDRAWAL FROM PROCEEDING – where the plaintiff is the owner of an industrial property – where the defendant was retained to design and construct a building on the industrial land – where the plaintiff alleges in their statement of claim that the concrete laid by the defendant does not meet the requisite strength – where the defendant issued a third party notice to the concrete supplier – where the defendant was given leave to discontinue proceedings against the third party after expert evidence was obtained – where the plaintiff and the third party seek an order that the defendant pay the third party’s costs – where the defendant argues that the costs of the third party proceeding be reserved – whether the defendant has surrendered their position against the third party and are required to pay their costs – whether the defendant acted reasonably in joining the third party – whether the third party will suffer prejudice if a costs order is not awarded before trial

Authorities
Uniform Civil Procedure Rules 1999 r 307, 681

Brown v Parker [1961] WAR 194
Covell Matthews & Partners v French Wools Ltd [1997] 2 All ER 591
Fairfield Services Pty Ltd (in liquidation) v Leggatt [2020] QR 50
Fox v Star Newspaper Co Ltd [1900] AC 19
Fuller v Toms [2010] QCA 283
Furber v Stacey [2005] NSWCA 242
GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688
Gold Coast Bakeries (Qld) Pty Ltd v Heat and Control Pty Ltd [1992] 1 Qd R 162
JT Stratford & Son Ltd v Lindley (No 2) [1969] 1 WLR 1547
Paron v Fry (No 2) [1990] 1 Qd R 550
Rathie v ING Life Ltd [2003] QSC 429
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622
Swisstex Finance Pty Ltd v Lamb [1993] Qd R 463
Thomas v Times Book Company Ltd [1966] 1 WLR 911

COUNSEL:

S Whitten and C Matthews for the plaintiff
A Greinke with S Lamb for the defendant
P Franco KC for the third party

SOLICITORS:

Hickey Lawyers for the plaintiff
Doyles Construction Lawyers for the defendant
Wotton + Kearney Lawyers for the third party

REASONS

On 4 May 2023 I gave the defendant leave to discontinue the third party proceedings. Pursuant to rule 307(2) of the Uniform Civil…

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: [2023] QSC 154
Decision Date: 14 July 2023

CaseChat Overview and Summary

Hestbay Pty Ltd, the owner of an industrial property, sued One Sector Pty Ltd, alleging that the concrete laid by One Sector did not meet the requisite strength. One Sector, in turn, issued a third party notice to the concrete supplier. One Sector was later given leave to discontinue proceedings against the third party after expert evidence was obtained, prompting the third party and Hestbay to seek an order for One Sector to pay the third party’s costs. One Sector argued that they had not surrendered their position against the third party and were not required to pay their costs. They also contended that they acted reasonably in joining the third party and that the third party would not suffer prejudice if a costs order was not awarded before trial.

The court had to decide whether One Sector had surrendered their position against the third party, making them liable for the third party’s costs. The court also had to consider whether One Sector acted reasonably in joining the third party and whether the third party would suffer prejudice if a costs order was not awarded before the trial. The court concluded that One Sector had not surrendered their position against the third party, and it was reasonable for them to join the third party. However, the court was concerned about the potential prejudice to the third party if a costs order was not awarded before trial.

Accordingly, the court ordered that the costs of the third party proceedings be reserved and that the parties be heard on the costs of the application. This decision ensures that the third party’s potential financial burden is considered and that the parties have an opportunity to argue their positions on the costs of the application. The court's decision also maintains the integrity of the legal process by ensuring that parties who are joined to proceedings are not unfairly disadvantaged.

Orders

Orders of the court

1. The costs of the third party proceedings be reserved.

2. The parties be heard on the costs of the application.

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:	Hestbay Pty Ltd v One Sector Pty Ltd [2023] QSC 154
PARTIES:	HESTBAY PTY LTD (ACN 010 851 073) AS TRUSTEE FOR THE J & F PROPERTY TRUST (plaintiff) v ONE SECTOR PTY LTD (ACN 139 990 891) (defendant) AND EXCEL CONCRETE PTY LTD (ACN 010 891 773)
FILE NO:	9563/21
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	14 July 2023
DELIVERED AT:	Brisbane
HEARING DATE:	14 June 2023
JUDGE:	Freeburn J
ORDER:	1. The costs of the third party proceedings be reserved. 2. The parties be heard on the costs of the application.
CATCHWORDS:	PROCEDURE – COSTS – DISCONTINUANCE OR WITHDRAWAL FROM PROCEEDING – where the plaintiff is the owner of an industrial property – where the defendant was retained to design and construct a building on the industrial land – where the plaintiff alleges in their statement of claim that the concrete laid by the defendant does not meet the requisite strength – where the defendant issued a third party notice to the concrete supplier – where the defendant was given leave to discontinue proceedings against the third party after expert evidence was obtained – where the plaintiff and the third party seek an order that the defendant pay the third party’s costs – where the defendant argues that the costs of the third party proceeding be reserved – whether the defendant has surrendered their position against the third party and are required to pay their costs – whether the defendant acted reasonably in joining the third party – whether the third party will suffer prejudice if a costs order is not awarded before trial Authorities Uniform Civil Procedure Rules 1999 r 307, 681 Brown v Parker [1961] WAR 194 Covell Matthews & Partners v French Wools Ltd [1997] 2 All ER 591 Fairfield Services Pty Ltd (in liquidation) v Leggatt [2020] QR 50 Fox v Star Newspaper Co Ltd [1900] AC 19 Fuller v Toms [2010] QCA 283 Furber v Stacey [2005] NSWCA 242 GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688 Gold Coast Bakeries (Qld) Pty Ltd v Heat and Control Pty Ltd [1992] 1 Qd R 162 JT Stratford & Son Ltd v Lindley (No 2) [1969] 1 WLR 1547 Paron v Fry (No 2) [1990] 1 Qd R 550 Rathie v ING Life Ltd [2003] QSC 429 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 Swisstex Finance Pty Ltd v Lamb [1993] Qd R 463 Thomas v Times Book Company Ltd [1966] 1 WLR 911
COUNSEL:	S Whitten and C Matthews for the plaintiff A Greinke with S Lamb for the defendant P Franco KC for the third party
SOLICITORS:	Hickey Lawyers for the plaintiff Doyles Construction Lawyers for the defendant Wotton + Kearney Lawyers for the third party