Lee v Arisaig Pty Ltd

[2005] QSC 288

SUPREME COURT OF QUEENSLAND

CITATION:	Lee v Arisaig Pty Ltd & Ors [2005] QSC 288
PARTIES:	JAMES MICHAEL LEE (plaintiff) v ARISAIG PTY LTD (ACN 010 234 009) (first defendant) WOODLANDS ENTERPRISES PTY LTD (ACN 009 759 746) (second defendant) LUMLEY GENERAL INSURANCE LIMITED (ACN 009 759 746) (third party)
FILE NO:	11029 of 2001
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	13 October 2005
DELIVERED AT:	Brisbane
JUDGE:	Mackenzie J
ORDER:	The order for costs is that the third party pay the second defendant’s costs of and incidental to the application to be assessed

1.   MACKENZIE J:Written submissions as to costs were delivered by leave following my order that the Third Party pay the Second Defendant’s costs of the application.

1. Para [22] of the reasons discloses the bases upon which it was held that the third party’s application should be dismissed.  While it is correct, as the third party’s costs submission says, that the third party may be absolved from the obligation to indemnify the second defendant once the trial judge makes findings of fact, the question governing costs is whether there were sufficient prospects of success to justify bringing the application, without knowing what might emerge at trial, in a case where the legal question was fact-dependant.

1. Had I thought that that was the case, an order reserving the costs to the trial judge would have been made.  The order in the reasons for judgment reflected that it was thought that, while it was understandable why the application was brought, it could not realistically succeed at a preliminary stage.

1. The order for costs is that the third party pay the second defendant’s costs of and incidental to the application to be assessed.