Hughes v Westpac Banking Corporation

[2010] QSC 332

SUPREME COURT OF QUEENSLAND

CITATION:	Hughes & Anor  v Westpac Banking Corporation and Ors [2010] QSC 332
PARTIES:	WESTPAC BANKING CORPORATION ACN 007 457 141 (first defendant/first applicant) BENDIGO BANK ACN 068 049 178 (second defendant/second applicant) NATIONAL AUSTRALIA BANK LIMITED ACN 004 044 937 (third defendant/third applicant) v RONALD HUGHES (first plaintiff/first respondent) MAVIS HUGHES (second plaintiff/second respondent)
FILE NO/S:	SC No 271 of 2007
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Cairns Supreme Court
DELIVERED ON:	21 September 2010
DELIVERED AT:	Brisbane
HEARING DATE:	Submissions on the papers
JUDGE:	Peter Lyons J
ORDER:	No order as to costs
CATCHWORDS:	PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - CONDUCT OF PARTIES - OTHER CONDUCT – where the first defendant failed on the major matters dealt with at the hearing – where the first defendant was successful on a less significant matter – where it is likely that the first defendant would have pursued the matters on which it was unsuccessful even if the plaintiffs had accepted the first defendant’s criticism of the matters on which the first defendant was successful – whether costs should be awarded to the first defendant
COUNSEL:	M A Jonsson for the respondent/plaintiffs V G Brennan for the first applicant/defendant T Fantin for the second applicant/defendant
SOLICITORS:	Williams Graham Carman Solicitors for the respondent/plaintiffs McCullough Robertson for the first applicant/defendant Bendigo and Adelaide Bank Ltd for the second applicant/defendant

1. On 2 August 2010 I gave judgment on the first defendant’s application in this matter.  It seeks an order for costs.

1. The effect of those reasons was to dismiss the first defendant’s application for summary judgment; to refuse its application for the disallowance of amendments introduced by the further amended statement of claim of the plaintiffs; but to require the plaintiff to replead some paragraphs of the further amended statement of claim, and in the event that they do not do so, to strike out those paragraphs. 

1. In my view, the first defendant failed on the major matters dealt with at the hearing before me.  The matter on which it was successful was less significant, occupied less time at the hearing, and is likely to have required less preparatory work, than did the matters on which the first defendant was unsuccessful. 

1. While it may be said that the first defendant had to pursue its application in order to achieve the success which it achieved, that must be considered in the context of the extent of the dispute between the parties which lead to the hearing.  It seems likely that even if the plaintiffs had been willing to accept the criticisms of the first defendant of the paragraphs in respect of which the first defendant has had success, the first defendant would have pursued the issues in respect of which it was unsuccessful.

1. In the circumstances, it seems appropriate to me to make no order as to costs.