Mallonland Pty Ltd v Advanta Seeds Pty Ltd

Mallonland Pty Ltd initiated proceedings against Advanta Seeds Pty Ltd, asserting claims for breach of duty of care, causation of loss, and arguing against the applicability of a limitations defence. The matter was heard and determined in the relevant state court. Advanta Seeds, the defendant, sought an order for Mallonland to bear the entire costs of the proceeding, invoking the general rule that costs follow the event, which in this case was the dismissal of Mallonland's claims. Conversely, Mallonland contended that the appropriate order was for them to pay only 50 per cent of Advanta Seeds' costs, reasoning that the defendant did not succeed on all issues contested, specifically breach of duty of care, causation of loss, and the limitations defence. Mallonland argued that these issues consumed a significant portion of the trial and the preparation of evidence.

The court was tasked with determining whether the term "event" in rule 681(1) of the Uniform Civil Procedure Rules 1999 (Qld) could be interpreted distributively to encompass the separate issues within a proceeding. Additionally, the court had to consider whether there was sufficient discretion to deviate from the customary order that costs follow the event, being the dismissal of the plaintiffs' claim. The court also examined an offer made by Advanta Seeds to Mallonland on 26 February 2020, in accordance with the principles set out in Calderbank v Calderbank [1976] Fam 93, which was open for acceptance until 6 March 2020. A condition of the offer was that within 15 business days of acceptance, Mallonland would secure a written recommendation from their senior counsel endorsing the acceptance for court sanction purposes. However, Mallonland's senior counsel was unwilling to make such a recommendation, and they ultimately failed to accept the offer, instead making a counter-offer after 6 March 2020. The court needed to decide whether Mallonland's refusal to accept the Calderbank offer was unreasonable and whether the costs incurred after 6 March 2020 should be assessed on an indemnity basis.

The court found that the term "event" in rule 681(1) should not be read distributively, thereby affirming that the primary event was the dismissal of Mallonland's claims. The court further determined that there was no sufficient basis to deviate from the general rule that costs follow the event. Regarding the Calderbank offer, the court concluded that Mallonland's refusal to accept it was unreasonable, leading to an order that the costs after 6 March 2020 should be assessed on an indemnity basis. Consequently, the court ordered that Mallonland pay Advanta Seeds' costs of the proceeding.