Peter Campbell Earthmoving Pty Ltd v Plentygold Miclere Pty Ltd (No 2)

[2020] QLC 28

LAND COURT OF QUEENSLAND

CITATION:

Peter Campbell Earthmoving Pty Ltd v Plentygold Miclere Pty Ltd (No 2) [2020] QLC 28

PARTIES:

Peter Campbell Earthmoving Pty Ltd
(applicant)

v

Plentygold Miclere Pty Ltd
(respondent)

FILE NO:

MRA690-19 (MLA 70069)

PROCEEDING:

Application to fix costs

DELIVERED ON:

6 August 2020

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 17 July 2020

HEARD AT:

On the papers

PRESIDENT:

FY Kingham

ORDER:

The respondent must pay the applicant’s costs of $19,256.90.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where Court ordered the Respondent to pay the Applicant’s costs – where the Court ordered that if the parties could not agree on costs, the Court would fix the costs – where the parties could not agree on the amount of costs – where the primary dispute was about the assessment of professional costs – where the Respondent provided no evidence to support its assertion about the correct method of calculation – where the Court fixed costs substantially in the amount proposed by the Applicant

Australian Coal and Shale Exploration Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25, cited
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119, 123; [1995] FCA 1250, applied
Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629, applied
Goodwin v O’Driscoll [2008] QCA 43, applied

APPEARANCES:

Not applicable

1. Plentygold Miclere Pty Ltd objected to an application for a mining lease transferred to Peter Campbell Earthmoving Pty Ltd. The matter resolved when Plentygold withdrew its objection. I ordered Plentygold to pay PC Earthmoving’s costs from 14 February 2020, on the standard basis on the Supreme Court scale. Subsequently, the parties filed a consent order that the Court fix those costs. They have made written submissions and PC Earthmoving has filed affidavit material in support of its submission that costs should be fixed in the sum of $20,093.13.

1. Plentygold has raised a number of arguments about costs, some of which are misconceived.

1. First, Plentygold complains PC Earthmoving has not produced a document in the nature of a Costs Statement. The objective of a fixed costs order is to avoid the expense and delay of the successful party preparing a costs statement.[1]

   [1]Supreme Court Practice Direction 3 of 2007 (Amended) 3(c).

1. Second, Plentygold asserts it is inappropriate for PC Earthmoving to ‘appropriate’ the Supreme Court scale. That question was settled by my order that costs be paid by reference to the scale.

1. Third, Plentygold raises a number of arguments about particular items included in PC Earthmoving’s submission on the amount of costs that should be paid. Fixing costs is a different process to a formal taxation, and the assessment is not subject to the detailed scrutiny normally reserved for formal taxations.[2] Plentygold’s reliance on the statement of principle in Australian Coal and Shale Exploration Federation v The Commonwealth[3], which deals with review of a decision by a taxing officer, provides no assistance.

   [2]Goodwin v O’Driscoll [2008] QCA 43 [12].

   [3](1953) 94 CLR 621; [1953] HCA 25.

1. Nevertheless, the estimate must ‘be carefully formulated and realistic’[4] and the Court must be confident the approach taken to estimating costs is logical, fair and reasonable.[5] The charges rendered to the party are relevant, although not determinative.[6]

   [4]Above n 1.

   [5]Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119, 123; [1995] FCA 1250.

   [6]Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629 [10].

1. PC Earthmoving has provided evidence of the amount charged and, in his affidavit and submissions, the solicitor for PC Earthmoving has explained the basis upon which it claims a total of $20,093.13.

1. It is based on the following:

1.          Recovering 57.5% of the professional costs charged to the client, excluding any amount for care and consideration ($16,731.07);

2.          Allowing 20% for care and consideration on that amount ($3,346.21);

3.          Allowing disbursements of ($15.85).

1. There is no dispute about the disbursements.

1. There is a dispute about the assessment of professional costs. The estimate assumes 57.5% of the amount charged to the client. That is the midpoint of a range of 55% to 60%. The solicitor for PC Earthmoving filed an affidavit explaining this is his assessment of the relationship between the Supreme Court scale and the costs charged to the client under the Costs Agreement. Plentygold argues the ‘general rule of thumb’ is that costs on a standard basis are calculated by reducing solicitor/client costs by 66% to 75%. He has provided no evidence to support that assertion. I will include the amount estimated by Mr Smart for professional costs.[7]

   [7]Mr Smart estimated $29,097.52 for professional costs.

1. As for the amount for care and consideration, the parties agree this should be formulated in accordance with the guidelines to Supreme Court Practice Direction 22 of 2018. PC Earthmoving proposes 20%, an award at the upper end of the range for a straightforward claim (15% to 20%), because of the specialist nature of this jurisdiction. I am not persuaded that is a reasonable allowance for this case. The matter was disposed of after a few directions hearings and exchanges between the parties about the merits of the objection. I will allow 15% for care and consideration ($2,510).

1. I fix costs at $19,256.90.