King Tide Company Pty Ltd v Arawak Holdings Pty Ltd No 2

[2023] QSC 220

SUPREME COURT OF QUEENSLAND

CITATION:

King Tide Company Pty Ltd v Arawak Holdings Pty Ltd No 2 [2023] QSC 220

PARTIES:

King Tide Company Pty Ltd

(applicant)

v
Arawak Holdings Pty Ltd

(respondent)

FILE NO:

BS No 5530 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 October 2023

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions 6 & 7 September 2023

JUDGE:

Martin SJA

ORDER:

1.   Arawak Holdings Pty Ltd is to pay King Tide Company Pty Ltd costs of the application on the indemnity basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – where the application was unsuccessful – whether a costs should be paid on the standard or the indemnity basis

Uniform Civil Procedure Rules 1999 (Qld) rr 444, 687(2)

COUNSEL:

B Kidston for the applicant/respondent

D Skennar KC for the respondent/appellant

SOLICITORS:

Enyo Lawyers for the applicant/respondent

Hartnett Lawyers for the respondent/appellant

1. On 23 August 2023, I delivered judgment on an application by Arawak Holdings Pty Ltd for the payment out of funds in court which had been paid in pursuant to an order that King Tide Company Pty Ltd provide security for costs.[1]

   [1]        King Tide Company Pty Ltd v Arawak Holdings Pty Ltd [2023] QSC 184.

2. I dismissed Arawak’s application and held that there were two bases upon which that result was available. 

3. The parties were directed to provide written submissions on costs with reference to the position of King Tide and its failure to obey an earlier order of the court. 

4. King Tide seeks an order that Arawak pay its costs of the application on the indemnity basis.  It supports that contention by relying upon the following matters:

   (a)Arawak did not comply with rule 444 of the Uniform Civil Procedure Rules 1999;

   (b)the application was hopeless;

   (c)Arawak ought to have known that the application was hopeless given that it had been alerted to that by King Tide;

   (d)Arawak persisted with the application notwithstanding that knowledge; and

   (e)Arawak failed to accept an offer made by King Tide to resolve the matter.

5. The offer made by King Tide was generous.  It offered to consent to an order that the application be dismissed and that King Tide pay Arawak its reasonable costs of the application. 

6. Arawak submits that it was forced into the application because of King Tide’s refusal to comply with an order of the court and that there should be no order as to costs.

7. Since I gave judgment on the earlier application Arawak served a statutory demand on King Tide and the demand was fully satisfied. 

8. I am satisfied that this is a matter in which it is appropriate that costs follow the event and that, in light of the offer made by King Tide and the other matters referred to, that costs should be on the indemnity basis. 

9. King Tide submitted that the court should fix the costs under rule 687(2) and proposes directions which would delay the resolution of this matter by up to five weeks. 

10. I make the following order:

    Arawak Holdings Pty Ltd is to pay King Tide Company Pty Ltd’s costs of the application on the indemnity basis. 

11. I direct that King Tide file and serve any affidavit material and submissions in relation to the fixing of those costs within seven days of today and that Arawak Holdings Pty Ltd file and serve any affidavit material in submissions in reply no later than 14 days today.