Robsyn Pty Ltd (in liquidation) v O'Brien (No 2)

SUPREME COURT OF QUEENSLAND

CITATION:

Robsyn Pty Ltd (in liquidation) v O’Brien (No 2) [2012] QSC 367

PARTIES:

ROBSYN PTY LTD (in liquidation)
(applicant)
v
PATRICIA MAY O’BRIEN AS TRUSTEE FOR THE JT & PM O’BRIEN SUPERANNUATION FUND
(respondent)

FILE NO:

637 of 2012

DIVISION:

Trial Division

PROCEEDING:

Application 

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

23 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Daubney J

ORDERS:

 CATCHWORDS:

The applicant and Peter Dinoris pay the respondent’s costs (including any reserved costs) of and incidental to the application, such costs to be assessed on the standard basis.

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – Where the bulk of the applicant’s application was unsuccessful – where application only succeed on a limited basis which was not in contention at the hearing – whether there should be a departure from the general rule that costs follow the event – whether there should be an order for costs on the indemnity basis – whether the liquidator ought also be made liable for costs

Emanuel Management Pty Ltd (in liq) & Ors v Foster’s Brewing Group Ltd & Ors [2003] QSC 299, cited
Robsyn Pty Ltd (in liquidation) v O’Brien [2012] QSC 285, cited
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, followed

COUNSEL:

A G Martin for the applicant
M Martin for the respondent

SOLICITORS:

Taylor David Lawyers for the applicant
MacDonnells Law for the respondent

1. The respondent enjoyed substantial success in respect of the application – see my reasons for judgment at [2012] QSC 285.

1. The parties have now provided their written submissions on costs.

1. Given that, as appears in the principal judgment:

(a)the only element of the application on which the applicant prevailed was for the indemnity of less than $2,000 for the ATO debt (a point which, by the time of the hearing, had become a non-issue between the parties), and

(b)the bulk of the argument at the hearing (over two days) was directed to the issues on which the respondent succeeded,

it is clear that the respondent ought have her costs of the application.

1. The only real questions are:-

(a)     whether those costs ought be recovered on the indemnity basis, and

(b)whether the liquidator of the applicant ought also be made liable for those costs.

1. The respondent sought indemnity costs, arguing that the applicant’s pursuit of legal costs incurred in the proceeding before Henry J was bound to fail, given findings which had been made by his Honour in that proceeding, and that the claim for liquidator’s remuneration was not supported by sufficient material and was, therefore, unsubstantiated.  The respondent argued:

“In all the circumstances, the Applicant’s relentless pursuit of its costs recovery without regard to the previous criticism of its conduct by this Honourable Court and without a proper evidentiary foundation warrants the making of an indemnity costs order in favour of the Respondent [sic] who have, for the third time, been put…