Hookey v Whitelaw (No 4)

SUPREME COURT OF QUEENSLAND

CITATION:

Hookey & Anor v Whitelaw & Ors (No 4) [2020] QSC 298

PARTIES:

SCOTT GREGORY HOOKEY

(first plaintiff)

KIDS ACADEMY HOPE ISLAND PTY LTD ACN 164 852 475 AS TRUSTEE OF THE KIDS ACADEMY HOPE ISLAND UNIT TRUST
(second plaintiff)
v
JOHN BRUCE WHITELAW
(first defendant)
KA ESTATES PTY LTD
ACN 600 469 887 AS TRUSTEE OF THE KA ESTATES UNIT TRUST
(second defendant)
JBW ESTATES PTY LTD
ACN 600 612 819 AS TRUSTEE OF THE JBW FAMILY TRUST

(third defendant)

FILE NO:

8477 of 2018

DIVISION:

Trial

PROCEEDING:

Costs judgment

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Flanagan J

ORDER:

The plaintiffs pay the defendants’ costs of the plaintiffs’ application filed 25 June 2020 and the defendants’ application filed 26 June 2020.

COUNSEL:

J W Peden QC for the plaintiffs
Dr D C Clarry for the defendants

SOLICITORS:

Van de Graaff Lawyers for the plaintiffs
Russells for the defendants

1. In Reasons published on 16 September 2020,[1] the Court granted the defendants’ application for the payment of $138,297.25 from the balance of the Trust Security held by the solicitors for the plaintiffs pursuant to the order of Mullins J (as her Honour then was) made 12 September 2018.  The plaintiffs’ application filed 25 June 2020, which was heard concurrently, was dismissed. 

   [1]Hookey & Anor v Whitelaw & Ors (No 3) [2020] QSC 284.

2. The Court further ordered that it would hear the parties as to costs.  The parties have filed written submissions in relation to the issue of costs.

3. The defendants seek their costs of both applications on the indemnity basis.  The plaintiffs accept that costs should follow the event, but submit that costs should only be awarded on the standard basis. 

4. In seeking costs on the indemnity basis, the defendants rely on the Court’s reasons as to conditions for relief against forfeiture and costs following the primary proceedings.[2]  The Court ordered that the plaintiffs pay the defendants’ costs of the proceeding on the Originating Application, and ordered that the plaintiffs pay the defendants’ costs of the counterclaim to be assessed on the indemnity basis.  Costs were ordered on the indemnity basis in relation to the counterclaim because it raised issues concerning the validity of the s 124 notices, termination of the lease, recovery of possession and relief against forfeiture.  Clause 14.1.2 of the lease required the lessee to pay the lessor’s reasonable costs incurred in connection with –

   “(f)the surrender or termination of this Lease (otherwise than by the effluxion of time); or

   (g)any breach of the Lessee of any obligation on its part contained in this Lease (including in connection with the exercise or attempted exercise by the Lessor of its rights which accrue in consequence of that breach).” 

   Clause 1.1 of the lease defined “Reasonable Costs” to include the lessor’s external legal costs on a solicitor and own client basis.

   [2]Hookey v Whitelaw [2020] QSC 147