Marlow Properties Pty Ltd v McDonald

[2007] QDC 80

DISTRICT COURT OF QUEENSLAND

CITATION:	Marlow Properties Pty Ltd v McDonald & Anor [2007] QDC 080
PARTIES:	MARLOW PROPERTIES PTY LTD ACN 104 862 311 as trustee for The Marlow Family Trust
Plaintiff V
KEITH JOHN MCDONALD and LOLA GERTRUDE MCDONALD
Defendants
FILE NO/S:	D1201/2005
DIVISION:	Civil
PROCEEDING:	Applications
ORIGINATING  COURT:	District Court of Queensland, Maroochydore
DELIVERED ON:	10 May 2007
DELIVERED AT:	Brisbane
HEARING DATE:	26 March 2007; Reasons for judgment delivered 18 April 2007; written submissions on costs received from each party on 24 April 2007
JUDGE:	Alan Wilson SC, DCJ
ORDER:	1 that the plaintiff pay one half of the defendants’ costs of and incidental to the plaintiff’s application for further disclosure of documents for which privilege had been claimed
2 that the defendants pay:

(a) one half of the plaintiff’s costs of and incidental to the

defendants’ application for further disclosure; and

(b) the plaintiff’s costs of and incidental to the

defendants’ application for an injunction restraining

the plaintiff’s solicitors from acting in the matter

CATCHWORDS:	COSTS – COSTS OF INTERLOCUTORY APPLICATIONS – DISCRETION – CROSS APPLICATIONS – relevant factors – orders for costs
Uniform Civil Procedure Rules, r 689
COUNSEL:	M Steele for plaintiff A H Sinclair for defendants
SOLICITORS:	Sykes Pearson Miller for plaintiff Kent Law Firm for defendants

1. In reasons for judgment delivered on 18 April 2007 it was ordered that:

(a)	the contents of an envelope sealed by order of the Court on 26 March 2007 be returned to the defendants;
(b)	the defendants’ application for further and better disclosure by the plaintiff be dismissed;
(c)	the plaintiff’s application for disclosure of documents for which privilege has been claimed by the defendants also be dismissed; and
(d)	the defendants’ application for an injunction restraining the plaintiff’s solicitors from acting in this matter also be dismissed.

The parties were subsequently invited to deliver written submissions about costs.

1. The plaintiff contends that, although its application for disclosure failed, it should nevertheless have its costs of all the applications. This contention is justified, it is said, because the plaintiff sought disclosure concurrently with an application that the defendants file and serve an amended defence, and the defendants did that on 12 March 2007, having earlier been ordered (on 2 March 2007) to pay the costs of an adjournment of the plaintiff’s applications that day.

2. It was also argued for the plaintiff that the hearing on 26 March 2007 primarily concerned the defendants’ applications and that, prior to that date, its solicitors offered to withdraw the remaining application for disclosure if the defendants did likewise. The plaintiff says the hearing only persisted because the grounds upon which the defendants were claiming privilege shifted. These arguments are not insubstantial but the plaintiff was not compelled, after the defendants signified a proper basis for resisting disclosure, to pursue its application and it consumed time and attention at the hearing. These various factors indicate it would be an appropriate exercise of the discretion under r 689 of the Uniform Civil Procedure Rules (UCPR) to order that the plaintiff pay one-half of the defendants’ costs of and incidental to the plaintiff’s application for further disclosure.

3. The defendants’ application for further disclosure was effectively defeated by an affidavit from the plaintiff’s solicitor, filed on the morning of the hearing, showing that disclosure was unassailable. Prior to that time the plaintiff’s disclosure had been attended with sufficient doubt, the defendants’ material showed, to make their application something less than speculative. Again, these factors indicate the discretion in r 689 UCPR is fairly encompassed by an order that the defendants pay half the plaintiff’s costs of and incidental to that application.

4. The defendants’ final application, for an injunction restraining the plaintiff’s solicitors from acting in the matter, was shown to be misconceived. They ought to pay the plaintiff’s costs of and incidental to that application.