Pullenvale Estates Pty Ltd as Trustee for Mantle Family Trust v Malone (No 2)
[2015] QSC 35
•26 February 2015
SUPREME COURT OF QUEENSLAND
CITATION:
Pullenvale Estates Pty Ltd as Trustee for Mantle Family Trust & Ors v Malone & Anor (No 2) [2015] QSC 35
PARTIES:
PULLENVALE ESTATES PTY LTD as trustee for MANTLE FAMILY TRUST
(first plaintiff)
JIMMY’S ON THE MALL PTY LTD
ABN 74 010 361 574
(second plaintiff)
J L HOLDINGS PTY LIMITED
ACN 010 390 888
(third plaintiff)
HOSPITALITY TRAINING & SERVICES PTY LTD
ABN 76 097 242 227
(fourth plaintiff)
HOT WOK FOOD MAKERS PTY LTD
ABN 15 058 494 447
(fifth plaintiff)
KOBE BRISBANE TRADE AND INVESTMENT CORPORATION PTY LTD
ABN 73 010 390 735
(sixth plaintiff)
NORTHBROOK CORPORATION PTY LTD as trustee for WEYBA TRUST
(seventh plaintiff)
TERRANORA GROUP MANAGEMENT PTY LTD as trustee for TERRANORA GROUP MANAGEMENT TRUST
(eighth plaintiff)
SAINTS HOTELS & RESORTS PTY LTD as trustee for MANTLE PROPERTY TRUST
(ninth plaintiff)
GODFREY NORMAN MANTLE & JENNIFER DEBORAH MANTLE
(tenth plaintiffs)v
BILL MALONE
(first defendant)
MALONE’S BUSINESS ADVISORS PTY LTD
ABN 37 792 258 135(second defendant)
FILE NO/S:
SC No 5602 of 2012
DIVISION:
Trial Division
PROCEEDING:
Application for Costs
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
26 February 2015
DELIVERED AT:
Brisbane
HEARING DATE:
Heard on the papers
JUDGE:
Philip McMurdo J
ORDER:
The plaintiffs are ordered to pay the defendants their costs of the application determined by the judgment of McMurdo J on 13 February 2015, including the costs of the defendants’ written submissions dated 20 February 2015.
CATCHWORDS:
PROCEDURE – COSTS – INTERLOCUTORY PROCEEDINGS – where the defendants had achieved substantial success in their application to have the plaintiffs’ statement of claim struck out – where the defendants sought an order for their costs of the application to be paid by the plaintiffs – where the plaintiffs submitted that the costs of the application should be costs in the proceeding or alternatively, that they should pay only half the defendants’ costs – where the plaintiffs submitted that that the costs should be reserved to the trial judge – no reason to reserve the costs of the interlocutory application, not being the result of any assessment of the ultimate merits – where the plaintiffs were ordered to pay to the defendants’ costs of the application
COUNSEL:
P W Telford for the plaintiffs/respondents
D A Savage for the defendants/applicants
SOLICITORS:
M&K Lawyers for the plaintiffs/respondents
HWL Ebsworth for the defendants/applicants
On 13 February 2015, I struck out much of the statement of claim. The result was not precisely according to the defendants’ application however. Some of their arguments were not accepted. Some of the paragraphs of the statement of claim which they challenged were not struck out. And there were other paragraphs which I did strike out, because that was a proper consequence of my acceptance of some of the defendants’ argument. Nevertheless, on any sensible view, the defendants achieved substantial success. They seek their costs.
The plaintiffs submit that the costs of the application should be costs in the proceeding or alternatively that they should have to pay only half of the defendants’ costs. They point to the differences between the application and the outcome to which I have already referred. They say that “the defendants enjoyed success in respect of roughly half of their arguments”. But a numerical account of the successful and unsuccessful submissions will rarely give a proper indication of an appropriate costs order. The defendants’ application revealed serious problems with the plaintiffs’ pleading. Absent the paragraphs which I struck out, what would remain of the plaintiffs’ case would be markedly different from that which had been pleaded.
The plaintiffs also made a further submission which would seem to suggest that the costs should be reserved to the trial judge. They submitted that “at that time the issues which are significant will be clear, the resolution of the proceedings will be known, and the concerns which have been expressed by the defendant’s expert can be the subject of further consideration”. However the outcome of this interlocutory application was not the result of any assessment of the ultimate merits. It was the result of my assessment of the shortcomings of the pleading. There is no reason to reserve these costs.
The plaintiffs will be ordered to pay the defendants their costs of the application determined by my judgment on 13 February 2015, including the costs of the defendants’ written submissions dated 20 February 2015.
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