Queanbeyan Leagues Club Ltd v Poldune Pty Ltd

[2001] NSWSC 934

CITATION:	Queanbeyan Leagues Club Ltd v Poldune Pty Ltd [2001] NSWSC 934
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 3418/96
HEARING DATE(S):	18 October 2001
JUDGMENT DATE:	18 October 2001
PARTIES :	Queanbeyan Leagues Club Limited (P) GIO Australia Holdings Limited (D2) M J Armstrong (D14) GIO Personal Investment Services Limited (D15) Marshall Marks Kennedy (XD1)
JUDGMENT OF:	Hamilton J

COUNSEL :	P M Donohoe QC & A Radojev (P) M J Slattery QC & R Pepper (D2 & 15) I Bailey (D14) D L Davies SC & M T McCulloch (XD1)
SOLICITORS:	Collaery & Colquhoun (P) Barker Gosling (D2 & 15) Tress Cocks & Maddox (D14) Phillips Fox (XD1)
CATCHWORDS:	PROCEDURE [557] - Costs - General rule - Costs follow the event - Costs of issues - Three applications involving defendants and cross defendant heard together - Issues intertwined - Two decided one way and one the other.
CASES CITED:	Queanbeyan Leagues Club Ltd v Poldune Pty Ltd [2001] NSWSC 898
DECISION:	As among defendants and cross defendant no order as to costs. Plaintiff's costs of the applications to be the plaintiff's costs in the proceedings.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

Thursday, 18 October 2001

3418/96 QUEANBEYAN LEAGUES CLUB LIMITED v POLDUNE PTY LIMITED & ORS

Judgment

1 HIS HONOUR: Submissions have been put to me on the question of costs of the two days or so of argument on applications which were determined by my most recent judgment in this matter: Queanbeyan Leagues Club Ltd v Poldune Pty Ltd [2001] NSWSC 898 (“my judgment”). There were, as appears in my judgment, three principal applications fought between the GIO and MMK. Those three applications were as to whether or not the issue of causation was closed or still open between the GIO and MMK; whether MMK should have leave further to cross examine Mr Stackpool; and whether MMK's most recent amended defence should be allowed to stand. On the first and last of these, MMK was successful. On the question of the recall of Mr Stackpool, MMK failed. In addition, Mr Slattery, of Queen's Counsel for the GIO, shortly made an application relating to the finality of decision in two other matters, namely, the issues of contributory negligence and laches and acquiescence as between the plaintiff and the defendants. Furthermore, at the end, there was some debate separately on an application relating to the amended defence of Mr Armstrong, similar to that in relation to the amended defence of MMK.

2 Mr Davies, of Senior Counsel for MMK, submits that there should be a costs outcome in general terms favourable to MMK because it won two out of the three principal applications. Furthermore, it says it won part of the argument relating to the recall of Mr Stackpool, because I held that the "fresh evidence" question was immaterial to the determination of the application, as contended by Mr Davies. Mr Slattery had contended that a "fresh evidence" requirement arose and this had been controverted by Mr Davies. Mr Slattery has indicated that he would be content with a neutral result as between the GIO and MMK on the costs of the applications.

3 A quick examination of the transcript of the argument of the applications made during the argument upon costs indicates to me that the three applications were a good deal intermingled during the course of argument and it is certainly not easy to attribute separate parts of the time taken to any particular application. I do not agree with Mr Davies' contention that the fact that the GIO won on the question of the further cross examination of Mr Stackpool, which I have a feeling was the real trigger of the fighting of all these applications, was neutralised by the fact that some of Mr Slattery's arguments were rejected. Nothing can detract from the fact that the GIO was successful upon this central matter. It is my view that it is time wasting and unrewarding to attempt a more detailed analysis of how much time was spent upon what.

4 In the end, the argument went on for two days, honours were divided between the GIO and the MMK as to who succeeded and, in my view, it is appropriate that a neutral solution be adopted as to the costs of the applications. That neutral solution should also apply in the case of Mr Armstrong. However, the plaintiff is in a different situation. It was not really engaged in the arguments among the defendants and the cross-defendant. The exigencies of the trial, however, required that its counsel be present throughout that time. The correct way of resolving the various matters to which I have referred is that there should be an order that, so far as those applications are concerned, there should be no order as to costs as between the GIO, MMK and Mr Armstrong. The plaintiff's costs of the applications should be the plaintiff's costs in the proceedings. I shall make orders accordingly.

************************************

Last Modified: 10/26/2001