International Cat Manufacturing Pty Ltd v Rodrick (No. 2)

[2010] QSC 180

SUPREME COURT OF QUEENSLAND

CITATION:

International Cat Manufacturing Pty Ltd & Anor v Rodrick & Ors (No. 2) [2010] QSC 180

PARTIES:

INTERNATIONAL CAT MANUFACTURING PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 099 908 942)

(First plaintiff)

and

DAVID HAMBLETON AND ROBERT MURPHY AS LIQUIDATORS OF INTERNATIONAL CAT MANUFACTURING PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 099 908 942)

(Second plaintiff)

v

RAYMOND JOHN RODRICK

(First defendant)

and

NU-LOG PTY LTD (ACN 011 420 515)

(Second defendant)

and

SUSAN RUTH CARTER AND JASON WALTER BETTLES

(Third defendants)

FILE NO/S:

9739 of 2006

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

McMurdo J

ORDER:

1.     Upon the plaintiffs’ application the costs of the first and second defendants will be their costs in the proceedings and the plaintiffs are to pay the costs of the third defendants.

2.     In each application made by the first and second defendants they are to pay the plaintiffs’ costs and the third defendants’ costs will be their costs in the proceedings.

3.     The plaintiffs are to pay to the third defendants their costs of the hearing on 25 September 2009 and the first and second defendants’ costs of that hearing will be their costs in the proceedings.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF PARTIES – OTHER CONDUCT – where the plaintiffs were successful in their application but the application was necessary only because of the plaintiffs’ defaults – where the first and second defendants put arguments which were rejected – whether costs should follow the event.

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF ISSUES – where the first and second defendants were unsuccessful upon their applications – whether costs should follow the event.

SOLICITORS:

Piper Alderman for the first and second plaintiffs

Russell and Company for the first and second defendants

QBM Lawyers for the third defendants

1. This judgment concerns the costs of the applications which I determined on 12 February 2010.  The protagonists were the plaintiffs and the first and second defendants.  The third defendants were represented but they had indicated their consent to what was sought by the plaintiffs in their application before it was filed and they made no submissions on the defendants’ applications.

1. The application by the plaintiffs was successful.  But it was necessary only because of the plaintiffs’ defaults.  Accordingly, the plaintiffs should not have their costs of this application.  But the first and second defendants put arguments which were rejected and the costs would have been less had those defendants, like the third defendants, agreed to an order extending time.  Therefore it would be unjust to order the plaintiffs to pay the costs of the first and second defendants regardless of the final outcome of the case.  I have concluded that the orders upon the plaintiffs’ application should be that the costs of the first and second defendants be their costs in the proceedings and that the plaintiffs should pay the costs of the third defendants.

1. The first and second defendants were unsuccessful upon their applications for summary judgment and for further security for costs.  The plaintiffs seek their costs of these applications from the first and second defendants; those defendants argue that the costs should be reserved.  The first and second defendants point out that the outcome was affected by statements and witness summaries which were provided after the application for summary judgment was filed.  Nevertheless, they persisted in this application.  I conclude that the costs should follow the event in each application made by the first and second defendants.  They should be ordered to pay the plaintiffs’ costs in each case.  The third defendants submit that upon these applications the third defendants’ costs should be their costs in the proceedings and it will be so ordered.

1. There remain the costs reserved on 25 September 2009.  That was a directions hearing which was effectively wasted because of the plaintiffs’ application having to be heard on a later date.  It will be ordered that the plaintiffs pay to the third defendants their costs of the hearing on 25 September 2009 and that the first and second defendants’ costs of that hearing be their costs in the proceedings.