Papale v Sucrogen Ltd
[2015] QSC 141
•27 May 2015
SUPREME COURT OF QUEENSLAND
CITATION:
Papale & Ors v Sucrogen Ltd & Anor [2015] QSC 141
PARTIES:
R PAPALE & VJ PAPALE (TRADING AS VJ & R PAPALE); GK & MR STOCKHAM; JORDAN FARMING (QLD) PTY LTD ACN 126 223 532 AS TRUSTEE FOR THE JORDAN FARMING TRUST; PHILIP MARK MARANO AS TRUSTEE FOR THE G MARANO FAMILY TRUST (TRADING AS PJ & G MARANO) and others
(plaintiffs)
v
SUCROGEN LIMITED
ACN 098 999 985(defendant)
GK & MS STOCKHAM and others
(defendants by counterclaim)FILE NO/S:
S11630 of 2012
DIVISION:
Trial division
PROCEEDING:
Application for costs
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
27 May 2015
DELIVERED AT:
Brisbane
HEARING DATE:
25 September 2014
JUDGE:
Peter Lyons J
ORDER:
The order of the Court is that the costs of the proceedings determined on 10 February 2015 be costs in the proceeding.
CATCHWORDS:
PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF ISSUES – where the plaintiffs were partially successful on their application for leave to amend their originating process and Statement of Claim – where the plaintiffs’ earlier application for leave to amend was dismissed – where the applications were made necessary by an earlier Court order and the defendant’s objections to earlier amendments proposed in response to the defendant’s counterclaim – whether the circumstances warrant a departure from the usual rule that a party seeking the Court’s indulgence should pay the costs – whether an order for costs of issues on which each party succeeded should be made
Bechara v Sotrip Pty Ltd (in liq) (No 3) [2013] QSC 178, followed
Mio Art Pty Ltd v Macequest Pty Ltd (No 2) [2013] QSC 271, considered
COUNSEL:
G A Thompson QC for the plaintiffs and for the defendants by counterclaim
S L Doyle QC for the defendant
SOLICITORS:
Clayton Utz for the plaintiffs and for the defendants by counterclaim
Russells for the defendant
On 10 February 2015 I made orders granting leave to the plaintiffs to amend their originating application and their Statement of Claim. I have subsequently received written submissions from the parties on the costs of that application.
The plaintiffs had made an earlier application for leave to amend their originating process and Statement of Claim. That application was dismissed on 29 May 2014, with an order for costs made against the plaintiffs.
The application determined in February 2015 sought to amend the originating application and Statement of Claim by adding two types of cause of action. One was described as a claim based on misleading conduct; and the other as a claim alleging unconscionable conduct. The plaintiffs were unsuccessful on the former, but successful on the latter.
The plaintiffs submit that the costs of the parties be costs in the proceeding. They rely by analogy on the decision of Jackson J in Bechara v Sotrip Pty Ltd (in liq) (No 3)[1] (Bechara). The defendant submits that the plaintiffs should pay the defendant’s costs of the application; or alternatively that those costs should be its costs in the cause. It relies on the fact that there was a previous unsuccessful application to amend; and that this was a case where the plaintiffs sought a dispensation, indulgence or favour of the Court, the usual rule in such cases being that the party seeking the order should pay the costs.
[1] [2013] QSC 178.
There are some features of the present case which make it different from many cases where the leave of the Court is sought. It is not a case where a party has failed to comply with a procedural requirement, and accordingly is in a position where it must seek the Court’s leave. The application for leave to amend the Statement of Claim was made necessary by the order of 6 June 2014, coupled with the defendant’s objections to the proposed amendments. Although the version of the Statement of Claim relied upon by the plaintiffs was a revision of the version to which the defendant objected, the defendant nevertheless raised objections to the revised version. Further, the amendments were in part related to matters raised by the defendant in its counterclaim. The proposition relied on by the defendant is not an invariable or inflexible rule. The matters which I have just referred to, it seems to me, warrant a different approach.
Each party had some success on the hearing of the application. It would have been possible to make an order for costs of issues on which the party succeeded. However, as Jackson J pointed out in Mio Art Pty Ltd v Macequest Pty Ltd (No 2)[2], there can be difficulties with such an approach, and a rough proportionment of costs “intelligently made” may lead to a fairer result. On that approach, it seems to me it would have been open to make no order as to the costs of the application.
[2] [2013] QSC 271 at [25].
In Bechara Jackson J considered an order that the costs be costs in the proceedings was appropriate to recognise the partial success of the parties on the proceedings before him. While a decision that there be no order for costs might more accurately reflect the success of the parties in the proceedings, no party contended for this course. Accordingly, I propose to take the approach taken by Jackson J in Bechara.
I order that the costs of the proceedings determined on 10 February 2015 be costs in the proceeding.
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