Nightowl Properties Pty Ltd v BDR No. 3 Pty Ltd (No 2)
[2022] QSC 152
•22 July 2022
SUPREME COURT OF QUEENSLAND
CITATION:
Nightowl Properties Pty Ltd v BDR No. 3 Pty Ltd (No 2) [2022] QSC 152
PARTIES:
NIGHTOWL PROPERTIES PTY LTD ACN 126 734 459
(plaintiff)
v
BDR NO. 3 PTY LTD ACN 651 996 879(defendant)
FILE NO/S:
236 of 2022
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court Cairns
DELIVERED ON:
22 July 2022
DELIVERED AT:
Brisbane
HEARING DATE:
On the papers
JUDGE:
Freeburn J
ORDER:
The defendant pay one-half of the plaintiff’s costs of the application filed on 21 June 2022.
CATCHWORDS:
JUDGMENT RELATING TO COST ORDDER – COSTS FOLLOW THE EVENT – APPORTIONING COSTS – where judgment was delivered on three applications – where one application was dismissed – where another application resulted in a party giving undertakings – where the last application was granted – where parties were invited to make submissions on costs – whether the plaintiff or defendant are entitled to a costs order – whether the costs order ought to be apportioned.
COUNSEL:
Mr D de Jersey QC (plaintiff/respondent)
Mr MD Martin QC with Mr DV Ferraro (defendant/applicant)
SOLICITORS:
Preston Law (plaintiff/respondent)
McCullough Robertson Lawyers (defendant/applicant)
On 8 July 2022, judgment was delivered on three applications brought by the defendant in this proceeding. The application for summary judgment was dismissed. The application for security for costs was disposed of by the order that the plaintiff give undertakings by three related entities. And the application to transfer the proceeding from Cairns to Brisbane was allowed.
The parties have now made short written submissions on the costs of those three applications.
The plaintiff contends that it has largely been successful and that the defendant ought to be ordered to pay 80% of the plaintiff’s costs of the applications. The defendant contends that the plaintiff should pay the defendant’s costs.
The starting point is UCPR 681 which provides that the costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.
Determining the “event” is more complex where there were three separate applications. On the first, the application for summary judgment, the plaintiff succeeded. On any view that application occupied the majority of the time and effort of the parties.
On the second, the application for security, the court accepted undertakings from three related entities. Undertakings by those three entities was an offer made in an affidavit filed on 29 June 2022 – eight days after the application had been filed. That undertaking was in place of an offer of an undertaking by only one of the entities, Think Convenience Pty Ltd.
And so, whilst the undertaking offered by the plaintiff was the one accepted as sufficient by the court on 29 June 2022, that undertaking was offered well after the application had been brought and it was supported by an affidavit filed by leave which explained some detail of the underlying assets of the group.
The parties spent some time arguing about the level of security that should be provided. As I noted in the reasons, neither estimate of costs appeared to be realistic.
Thus, on this second issue, the honours were relatively even. A proper, supported undertaking took time to extract from the defendant and then, when a reasonable undertaking came, the defendant pursued an order rather than the reasonable undertaking that was offered.
On the third application, the defendant succeeded. However, that was, as the reasons recite, a reasonably evenly balanced exercise.
If all three applications had involved roughly equal time and costs, then it would be appropriate to equally apportion costs.
However, the application for summary judgment was, by some margin, the most time-consuming. The issues raised by the summary judgment application involved an analysis of the heads of agreement and the correspondence between the parties, as well as some issues related to specific performance.
It is only a guide but in the defendant’s outline the summary judgment these issues occupied nearly six pages of eight pages. In the plaintiff’s outline it was 6½ pages out of 10½. In the reasons it was roughly 12 of 18 pages. That reflects the likely costs incurred by the parties on the application for summary judgment as opposed to the other two applications. As the defendant succeeded on that principal issue it ought to be at least partially indemnified by a costs order.
In the circumstances, adopting a broad brush approach, an appropriate costs order is that the defendant pay one-half of the plaintiff’s costs for the applications.
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