Qantas Airways Limited v BMD Constructions Pty Limited (No 2)
[2023] QSC 250
•10 November 2023
SUPREME COURT OF QUEENSLAND
CITATION:
Qantas Airways Limited & Anor v BMD Constructions Pty Limited (No 2) [2023] QSC 250
PARTIES:
QANTAS AIRWAYS LIMITED
ACN 009 661 901(first plaintiff)
JETSTAR AIRWAYS PTY LIMITED
ACN 069 720 243(second plaintiff)
v
BMD CONSTRUCTIONS PTY LIMITED
ACN 010 126 100
(defendant)FILE NO/S:
BS No 8964 of 2019
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court of Queensland at Brisbane
DELIVERED ON:
10 November 2023
DELIVERED AT:
Brisbane
HEARING DATE:
On the papers
JUDGE:
Brown J
ORDER:
The defendant pay 80 per cent of the first plaintiff’s costs on the standard basis.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where the defendant applied to strike out amendments made in the plaintiffs’ second further amended statement of claim – where the Court ordered that two paragraphs be struck out with liberty to re-plead but otherwise dismissed the defendant’s application – where the parties were unable to agree the appropriate order as to costs – whether costs should follow the event
Uniform Civil Procedure Rules 1999 (Qld)
Qantas Airways Limited & Anor v BMD Constructions Pty Ltd [2023] QSC 206
COUNSEL:
M K Stunden for the plaintiffs
S Couper KC and S Parvez for the defendant
SOLICITORS:
HWL Ebsworth Lawyers for the plaintiffs
Carter Newell Lawyers for the defendant
Following an application by the defendant to strike out amendments made by the first plaintiff in the Second Further Amended Statement of Claim (2FASOC), I ordered that two paragraphs of the 2FASOC be struck out with liberty to re-plead and otherwise dismissed the defendant’s application.[1]
[1]Qantas Airways Limited & Anor v BMD Constructions Pty Ltd [2023] QSC 206.
The parties have not been able to agree the appropriate order as to costs.
The first plaintiff contends that the defendant should pay its costs of and incidental to the strike out application on the standard basis. The defendant contends, however, that the costs should be reserved because the first plaintiff’s claim may ultimately be unsuccessful and it remains to be seen whether the first plaintiff can plead a viable case in relation to the two paragraphs which were struck out. In that regard, the defendant particularly draws upon the Court’s reasons that parts of the re-pleaded case are novel and require extrapolation of existing principles to the present case.
I have determined that the defendant should pay 80 per cent of the plaintiff’s costs for the following reasons.
Generally, costs will follow the event as contemplated by r 681(1) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).
The defendant was largely unsuccessful and, as contended by the first plaintiff, I rejected the defendant’s principal contentions that the amendments to the 2FASOC were an abuse of process and that the first plaintiff’s common intention case was an artificial construct.
While I accept, as the defendant contends, that the two paragraphs of the 2FASOC which were struck out, paragraphs 21G and 22D, were matters of substance and of some significance to the first plaintiff’s case, I consider that should be addressed by adjusting the amount of costs which the defendant is ordered to pay to the first plaintiff. While it is true that the Court commented in its reasons that the first plaintiff was relying on extrapolation of legal principles applying in a somewhat novel way, and there is a real issue as to whether the first plaintiff will be successful at the end of the day, the first plaintiff was still largely successful in defending the amendments made in the 2FASOC and the contention that the pleading was an abuse of process. The Court rejected the defendant’s contention that the impugned paragraphs, other than paragraphs 21G and 22D, were not arguable in law or in fact and found that the amendments raised questions of law and fact which merit a trial.
While the latest amendments involved the first plaintiff significantly changing its claim from the previous version of the claim, in which Eastern Australia Airlines Pty Ltd was made an additional plaintiff and alleged that it suffered loss which is now claimed to have been suffered by the first plaintiff, the defendant will have its costs of the amendments thrown away paid for by the first plaintiff. If the first plaintiff does not succeed on its case now pleaded, that can be considered in the context of the costs orders to be made at that time.
While it is well established that a party which has not been entirely successful is not inevitably deprived of some of its costs, the Court may determine that some adjustment is appropriate. In the present case, the defendant had some success but its application substantially failed. The appropriate order should reflect the defendant’s limited success but otherwise the defendant should pay the first plaintiff’s costs. This is appropriate particularly in circumstances where the first plaintiff had invited the defendant to withdraw its application on the basis that, inter alia, each party would bear its own costs of the application incurred to date,[2] and had put the defendant on notice that it would call evidence from the relevant officers in respect of the pleaded common intention case, which is also relevant to the claim by the first plaintiff for loss suffered.
[2]Affidavit of M Latta filed 9 February 2023 at 290–291.
In the circumstances, the appropriate order is that the defendant pay 80 per cent of the first plaintiff’s costs on the standard basis.
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