Podium Project Marketing Pty Ltd v B Global (Aust) Pty Ltd (No. 2)

[2024] QDC 8

DISTRICT COURT OF QUEENSLAND

CITATION:

Podium Project Marketing Pty Ltd v B Global (Aust) Pty Ltd (No. 2) [2024] QDC 8

PARTIES:

PODIUM PROJECT MARKETING PTY LTD

ACN 637 089 760

(plaintiff/applicant)

v

B GLOBAL (AUST) PTY LTD

ACN 644 677 136

(defendant/respondent)

FILE NO:

1087 of 2022

DIVISION:

Civil

PROCEEDING:

Interlocutory application (costs)

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

14 February 2024

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers. Submissions of both parties filed 9 February 2024.

JUDGE:

Byrne KC DCJ

ORDER:

The costs of the plaintiff’s application for summary judgment be the parties’ costs in the proceeding.

CATCHWORDS:

SUMMARY JUDGMENT – COSTS – where the plaintiff unsuccessfully applied for summary judgment – where rule 299(1) UCPR is engaged - where the application turned on a point of statutory construction which was not the subject of earlier consideration – whether the trial judge is bound by the construction adopted on the interlocutory application – whether the usual approach to order costs in the proceedings should be adopted.

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld) r 299(1).

CASES: 

Castillon v P & O Ports Limited (No. 2) [2008] 2 Qd R 219.

Clements v Loel [2023] QSC 271.

State of Queensland v Nixon & Ors [2002] QSC 296.

COUNSEL:

Mr J.D. Byrnes for the plaintiff/applicant.

Mr. L. Copley for the defendant/respondent.

SOLICITORS:

Clayton Utz for the plaintiff/applicant.

Freestone Law for the defendant/respondent.

1. The plaintiff unsuccessfully sought summary judgment in the substantive proceedings.[1] It submits that the costs should be ordered to be the parties’ costs in the proceeding, or alternatively that the costs should be reserved. It relies, in part, on the observations made by Freeburn J in Clements v Loel [2023] QSC 271, a case where rule 299(1) of the Uniform Civil Procedure Rules was not engaged on the facts.

   [1]Podium Project Marketing Pty Ltd v B Global (Aust) Pty Ltd [2024] QDC 3.

2. On the other hand, the successful defendant contends that rule 299(1) of the UCPR is engaged, and hence it is entitled to its costs. Alternatively, it is said that, given the plaintiff elected not to put on any evidence going to substantive issues in the application, there is no reason to leave the issue to the trial judge and the costs should be ordered to be in the cause.

3. The defendant is correct. Rule 299(1) is engaged because the statutory construction that I favoured was clearly raised in the defence. While the Court must take that into account, it is one factor in the exercise of the discretion, albeit one in favour of awarding the defendant its costs of the application. On the other hand, orders for costs on a summary judgment application do not necessarily follow the event, for the reasons outlined by Muir J (as his Honour then was) in State of Queensland v Nixon & Ors [2002] QCS 296.

4. The presumably deliberate decision to not put on evidence relevant to the issues in the application is a factor that favours the defendant on this costs application given the plaintiff was aware that the defendant’s pleading raised the issue which determined the application. However, the application was conducted on the basis that there was no previous guidance on the precise construction issue raised, and there was a prima facie argument established by the plaintiff. In that sense, the decision to bring the summary judgment application was not unreasonable.

5. Although the application failed on a point of statutory construction, the determination of the application necessarily required the application of that construction to the facts as revealed on the basis of the pleadings alone. It is not my role to guess what evidence might or might not be adduced at a trial. It is sufficient to observe that some might be adduced going to issues I identified. Further, the issue of whether a determination at an interlocutory stage is final between the parties or not is not always easily resolved.[2] Ultimately, my construction may not be binding on the trial judge, but that is an issue for that judge’s decision.

   [2]Castillon v P & O Ports Limited (No. 2) [2008] 2 Qd R 219 per Holmes J at [49]-[58], Wilson J agreeing at [78] and Keane JA not deciding at [7].

6. Accordingly, it cannot be said that my determination has necessarily foreshadowed the final outcome in the litigation, especially given there is also a counterclaim to be decided.

7. For those reasons, there is merit in leaving the actual determination of the costs of this application to the trial judge, who will have the benefit of assessing the evidence adduced in light of any construction adopted at that time, and in light of the outcome of the counterclaim.

8. Costs should be the parties’ costs in the proceeding.