Highmist Pty Ltd v. Tricare Australia Ltd

[2005] QSC 118

[2005] QSC 118

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

WILSON J

No 6356 of 2001

HIGHMIST PTY LTD

Plaintiff

ACN 073 507 481

and

TRICARE AUSTRALIA LIMITED

Defendant

ACN 009 657 345

BRISBANE

..DATE 21/04/2005

ORDER

HER HONOUR:  On 1 April 2005 I delivered reasons for my

conclusions that the subdivision effected in September 2001

was not in accordance with that contemplated by the contract,

that the plaintiff is entitled to specific performance, and

that the defendant is not entitled to rescission.

Yesterday, 20 April 2005, the parties made further submissions

with respect to the form of the order, costs and a stay.  The

parties are agreed on the form of the order, so that the

outstanding issues are costs and a stay.

I refer to the draft order which is at pages 9 to 12 of the

exhibits to the affidavit of Richard John Bernard Ellem filed

by leave on 20 April 2005.  The order will be as per

paragraphs 1 to 6 of that draft.

As to costs, the plaintiff seeks an order that the costs of

and incidental to the action, save for those costs relating to

the matters which have been adjourned, including reserved

costs and the costs of and incidental to the hearing on

20 April 2005, be paid by the defendant to the plaintiff.

The defendant seeks orders:

(1) that the plaintiff pay the defendant's costs of and
     incidental to the proceedings up to and including
     24 November 2004;

(2) that the plaintiff pay the defendant's costs of the
     trial in relation to the issue of access.

Costs normally follow the event. Rule 689(1) of the UCPR

provides:

"689 General rule about costs

(1) Costs of the proceeding, including an application in
     a proceeding, are in the discretion of the Court but
     follow the event, unless the Court considers another
     order is more appropriate.

(2) Subrule (1) applies unless these rules otherwise
     provide."

Counsel for the defendant pointed out that the plaintiff's

Statement of Claim has at all times included an allegation

that it was an implied condition of the contract that it would

have access to the main thoroughfare (paragraph 12), and

submitted that until its solicitors wrote to the solicitors

for the defendant on 24 November 2004 identifying with greater

particularity the orders sought, its claim for specific

performance was a claim for specific performance of a contract

which included such an implied term.

Counsel for the plaintiff pointed out that in the prayer for

relief the plaintiff's claim had always been simply for

specific performance of the contract, in particular the

subdivision of the land in accordance with the plan attached

to the contract (with no reference to an implied right of

access over the thoroughfare) and that there had never been

any relief or remedy in respect of access claimed in the

prayer for relief.  But over the years there were times when

the plaintiff claimed access rights of some kind in

correspondence, and at trial the access issue was argued in

defence of the claim for rescission.  Strictly, the

plaintiff's claim was never one for specific performance with

access, and I am unpersuaded that there is good reason for

depriving it of its costs up to 24 November 2004, let alone

for ordering it to pay the defendant's costs up to that date.

It is true that the issue of access took a substantial portion

of the trial and subsequent written submissions.  It was a

critical issue on the defendant's rescission claim, a claim on

which the defendant failed.  It may be that the defendant's

counsel failed to appreciate where the issue fitted into the

scheme of the arguments to be advanced on behalf of the

plaintiff until the second day of the trial.

Be that as it may, the defendant has not demonstrated good

reason why the Court should order the plaintiff to pay the

defendant's costs of the trial in relation to the issue of

access.

So the order for costs will be that the defendant pay the

plaintiff's costs of and incidental to the proceeding, save

for those costs which relate to the matters which have been

adjourned, including reserved costs and the costs of and

incidental to the further hearing on 20 and 21 April 2005.

The defendant intends to prosecute an appeal, and seeks a stay

of the order requiring completion of the contract pending

resolution of the appeal.  It proffers undertakings:

(1) to prosecute such an appeal expeditiously; and

(2) not to sell or further encumber lots 20 and 21 on
     SP 144932 until the final determination of its appeal by
     the Court of Appeal.

Its counsel submits that it would be appropriate to grant a

stay; indeed that a successful appeal would be rendered

nugatory if a stay were not granted.

The plaintiff opposes a stay being granted at this stage.  The

contract was made as long ago as April 1996.  The defendant

has already run three unsuccessful appeals to the Court of

Appeal - two in relation to its proceedings in the Planning

and Environment Court, and one involving the plaintiff

(against the order of Dowsett J).  If a stay were granted, the

reconfiguration process would not commence until after the

determination of the appeal.  Further delay would expose the

plaintiff to a volatile market and the risk of rising interest

rates.

Counsel for the plaintiff proposed that the application for a

stay be adjourned to be brought on (if the defendant so

desired) immediately before lodging the plans for

reconfiguration of the new lot at the Land Titles Office.  He

proffered an undertaking that in the event the defendant is

ultimately successful in having the order for specific

performance set aside, the plaintiff will meet costs incurred

by the defendant in performing the order up to the time of the

lodgment of the plans for reconfiguration of the new lot at

the Land Titles Office.  He clarified that by "ultimately

successful" he meant "in the High Court if needs be".

In my view, the proposal put forward by counsel for the

plaintiff would fairly and adequately protect the positions of

both parties pending the exhaustion of appeal rights.

Accordingly, upon the undertaking of the plaintiff to meet

costs incurred by the defendant in performing the order for

specific performance up to the time of the lodgment of the

plans for reconfiguration of the new lot at the Land Titles

Office in the event that the defendant is ultimately

successful in having the order for specific performance set

aside, I order that the defendant's application for a stay be

adjourned to a date to be fixed, to be brought on (if the

defendant so desires) immediately before plans for

reconfiguration of the new lot are lodged at the Land Titles

Office.

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