Oasis JV Pty Ltd v Armstrong and Anor (No.2)

[2017] QDC 177

DISTRICT COURT OF QUEENSLAND

CITATION:

Oasis JV Pty Ltd v Armstrong & Anor (No.2) [2017] QDC 177

PARTIES:

OASIS JV PTY LTD
(plaintiff)

v

MARK ARMSTRONG
(first defendant)

and

TIARNA ARMSTRONG
(second defendant)

FILE NO/S:

BD3807/16

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

Plaintiff’s submissions dated 9 June 2017; defendants’ submissions dated 16 June 2017

JUDGE:

Smith DCJA

ORDER:

1.   I order the defendants pay the plaintiff’s costs of and incidental to the applications fixed in the sum of $5,282.43 but that such costs are to be the plaintiff’s costs in the proceeding.

2.   Liberty to apply on the giving of 2 days written notice.

CATCHWORDS:

COSTS  – Whether the defendants should pay the plaintiff’s costs concerning an application to strike out a summary judgment- where the plaintiff’s application for summary judgment was dismissed- where defendants’ defence and counter-claim were struck out  

Uniform Civil Procedure Rules 1999 (Q) r 171, 681, 687

District Court Practice Direction 3 of 2007

Oschlack v Richmond River Council (1998) 193 CLR 72

Thiess v TCN Channel 9 Pty Ltd (No. 5) (1994) 1 Qd R 157

COUNSEL:

Mr S T Lane for the plaintiff

Self-represented defendants

SOLICITORS:

HWL Ebsworth Lawyers for the plaintiff

Self-represented defendants

Introduction

1. This is the costs decision consequent upon my decision given in Oasis JV Pty Ltd v Armstrong & Anor.[1]

   [1] [2017] QDC 142

Submissions

1. The plaintiff submits that the defendants should pay its costs on an indemnity basis or alternatively on the standard basis. It is further submitted that the court should fix the costs in accordance with r 687(2) of the UCPR and Practice Direction 3 of 2007. It submits that the defence contained numerous admissions; the defendants were put on notice of the deficiencies in the pleading; and despite the dismissal of the summary judgment application it was substantially successful.

1. The defendants submit that the plaintiff’s application for summary judgment was premature; they are self-represented; the case is complex and mediation would have been more appropriate. As two of the plaintiff’s applications have been dismissed the plaintiff should pay their costs.

Disposition

1. Rule 681(1) of the UCPR provides that:

“Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court otherwise orders.”

1. Rule 171(2) of the UCPR also contemplates that costs may be awarded on an indemnity basis when a pleading is struck out. A court maintains a discretion with respect to costs.[2]  Also in the absence of special circumstances, a court exercises its discretion to award costs to the successful party.[3] 

   [2]Oschlack v Richmond River Council (1998) 193 CLR 72

   [3]Thiess v TCN Channel 9 Pty Ltd (No. 5) (1994) 1 Qd. R. 157 at 207-208

1. In this case it was clear that the defendants were put on notice concerning the difficulties with their pleadings.  The defendants did not rectify the issues with their pleadings.  Further, the defendants advanced a case against the plaintiff which was only available against Sovereign which cause of action was specifically struck out. 

1. On the other hand, the plaintiff was unsuccessful in its summary judgment application against the defendants.

1. Overall it seems to me that the plaintiff was more successful than the defendants.

1. In all of the circumstances I have determined to order the defendants to pay 50% of the plaintiff’s costs on the standard basis fixed by reference to the affidavit of Mr Tolhurst but to order those costs be the plaintiff’s costs in the proceedings. 

1. The amounts referred to by Mr Tolhurst seem reasonable and are not challenged by the defendants. 

1. The orders are:

1.          I order that the defendants pay the plaintiff’s costs of and incidental to the applications fixed in the sum of $5,282.43 but that such costs are to be the plaintiff’s costs in the proceedings.

2.          Liberty to apply on the giving on 2 days written notice.