QCoal P/L & Anor v. Cliffs Australia Coal P/L & Anor (No 2)

[2009] QSC 160

[2009] QSC 160

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

McMURDO J

No 9591 of 2007

QCOAL PTY LTD	First Plaintiff
and
QCOAL SONOMA PTY LTD	Second Plaintiff

and

CLIFFS AUSTRALIA COAL PTY LTD
(ACN 123 538 326)  First Defendant

and

CLIFFS AUSTRALIA WASHPLANT
OPERATIONS PTY LTD (ACN 123 748 032)   Second Defendant

BRISBANE

..DATE 15/06/2009

ORDER

HIS HONOUR:  On 29 May last I gave judgment dismissing the plaintiffs' claim and declaring that as defendants to the counterclaim they were liable to repay the sum of $276,453.82, together with interest on that sum, pursuant to the contract.  I gave liberty to apply for a judgment for a money sum consistent with that declaration.

I made those orders because as the parties anticipated at the trial I would need further information in order to calculate the accrued interest according to the contract.

That calculation has now been performed but at the commencement of the hearing this morning I was informed that a cheque for the principal sum, together with that accrued interest, has been delivered but not yet cleared.

Accordingly I will, as requested by the parties, stand over to a date to be fixed the question of a judgment for a money sum.  I will direct the parties to write to my Associate by 22 June 2009 to advise whether any further hearing will be required.

That leaves the questions of costs.  On 6 March of this year I reserved costs of two applications for disclosure.  One was made by the plaintiffs which was substantially successful.  The other was made by the defendants.  In the end I am persuaded that that was substantially unsuccessful.

It is true that to a large extent the outcome of that application was according to information which was provided on or very close to the date of the hearing.  Nevertheless, overall, the defendants’ application was, I think, substantially unsuccessful.  And the costs of each application should follow what was, in substance, the event.

The defendants in the proceedings will be ordered to pay to the plaintiffs their costs of and incidental to the plaintiffs' application filed on 5 March 2009 and the defendant's application filed by leave on 6 March 2009.

I come now to the costs of the proceedings themselves.  The defendants made an offer to settle on 22 December 2008.  The offer was to accept $160,000 in respect of the counterclaim and for the plaintiff's claim to be dismissed. 

By schedule 4 of the Uniform Civil Procedure Rules a plaintiff is defined to include a party that files a counterclaim. Accordingly the defendants in the proceedings are plaintiffs for the purposes of Rule 360.

They have obtained a judgment which is no less favourable than their offer to settle and, according to Rule 360 subrule (1) it must be ordered that the plaintiffs pay their costs calculated on an indemnity basis unless it is shown that another order for costs is appropriate in the circumstances.

The plaintiffs conceded that they should pay the costs of the proceedings apart from those reserved costs I have mentioned but argued that they should be awarded upon the standard basis.  They submit that they were successful on some arguments and that the alternative claim for damages would have succeeded but in an amount less then the offer.  But their principal argument is that the costs of the counterclaim are really to be characterised as costs of defending their claim so that Rule 360 is not apt.   It is said that the defendants have succeeded in recovering what was described in oral argument as a "trifling sum".  That may or may not be so in the context of this joint venture, but it may be observed that they, that is the successful defendants, have recovered on their counterclaim a sum in excess of the jurisdictional limit of the District Court and for present purposes I would not treat it as such.

It is submitted that there is no evidence to indicate that the successful defendants would have brought their own proceedings to recover such an amount absent the claim which was brought against them.  But nor is there evidence the other way, and the position therefore is that there is no evidence in that respect which would displace the prima facie operation of Rule 360.

In my conclusion none of the plaintiffs' arguments warrants a departure from the position according to Rule 360. 

Success on some arguments in the litigation does not of itself warrant a departure from the usual rule as to costs.  The fact that the successful parties would have recovered less upon their alternative claim for damages does not detract from the fact that they have recovered on their principal counterclaim more than they offered to accept.  And the fact that the dispute came to Court on the initiative of the plaintiffs requiring the parties who were in truth the creditors to make a counterclaim, should not affect the operation of Rule 360.

Accordingly it will be further ordered that the plaintiffs pay to the defendants their costs of and incidental to the claim and counterclaim, other than the costs refereed to in the previous order, to be assessed upon the indemnity basis.

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