McCarthy v The State of Queensland (No 2)
[2013] QDC 104
•8 May 2013
DISTRICT COURT OF QUEENSLAND
CITATION:
McCarthy v The State of Queensland (No 2) [2013] QDC 104
PARTIES:
PATRICK JOHN MCCARTHY trading as P J MCCARTHY COMMERCIAL AND RESIDENTIAL BUILDERS
(Applicant)
v
THE STATE OF QUEENSLAND through the DIRECTOR GENERAL DEPARTMENT OF HOUSING AND PUBLIC WORKS
(Respondent)
FILE NO/S:
75/2012
DIVISION:
Civil
PROCEEDING:
Applications
ORIGINATING COURT:
District Court of Brisbane
DELIVERED ON:
8 May 2013
DELIVERED AT:
Brisbane
HEARING DATE:
30 April 2013
JUDGE:
Farr SC DCJ
ORDER:
That the applicant pay the respondent’s costs of and incidental to the application to be assessed on the standard basis.
CATCHWORDS:
COSTS ORDER - APPLICATION – summary judgment – application dismissed - statutory debt - Building and Construction Industry Payments Act 2004 (QLD) – section 19 - Uniform Civil Procedure Rules 1999 (QLD) – rule 292 – whether payment claim valid – progress payments – where no reference date specified under contract – where contract provided time for making payments was ‘monthly’ – where alleged multiple payment claims made in relation to earlier reference dates - whether a real prospect of defending a claim - whether no need for a trial – where plaintiff ought to be put to strict proof of his claim
COUNSEL:
P D Hay for the applicant
A W Duffy for the respondent
SOLICITORS:
Flehr Law for the applicant
Crown Law for the respondent
On 30 April 2013 I dismissed an application for summary judgment in this matter and sought submissions as to costs.
The applicant has conceded that the respondent should have its costs but that such costs be limited only to those incurred on the hearing date. The basis for that submission is that the respondent only filed its amended defence, which raised for the first time the argument upon which the respondent was ultimately successful in the application, the day before the hearing.
The respondent concedes the late notice of the amended defence but submits that as the applicant nevertheless proceeded with the application and contested the issue, this is an appropriate matter in which to make the usual costs order.
I agree with the respondent’s submission. Whilst there is no doubt that the amended defence was filed very late, I have no reason to believe, given the way the matter was argued, that the applicant would have abandoned the application had that defence been filed earlier.
Accordingly I order that the applicant pay the respondent’s costs of and incidental to the application to be assessed on the standard basis.
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