SDW Projects Pty Ltd v Modi (No 2) - [2012] QSC 426

SUPREME COURT OF QUEENSLAND

CITATION:

SDW Projects Pty Ltd v Modi & Ors (No 2) [2012] QSC 426

PARTIES:

SDW PROJECTS PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) ACN 110 335 923

(applicant)

v

SANJU MODI

(first respondent)

and

LISA JANE CLEMENTS

(second respondent)

and

HOLDING REDLICH (A FIRM)

(third respondent)

and

THOMAS BRADLEY

(fourth respondent)

FILE NO:

10460 of 2012

DIVISION:

Trial Division

PROCEEDING:

Application for costs

DELIVERED EX TEMPORE ON:

12 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

12 December 2012

JUDGE:

Peter Lyons J

ORDER:

1. The first and second respondents pay the costs of the applicant of and incidental to the proceedings and of the third and fourth respondents, to be assessed on a standard basis.

2. The order for costs made today extend to the costs of the hearing of 20 April 2012.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – CO–DEFENDANTS – where the applicant sued two firms of solicitors who had acted for it in relation to some conveyancing transactions – where it was alleged that those firms had been negligent in relation to compliance with a requirement of s 365(2A)(c)(ii) of the Property Agents and Motor Dealers Act 2000 (Qld) – where there were applications to add the third and fourth respondents as defendants to those actions for failing to conclude that the actions taken by the first and second respondents were sufficient to comply with those requirements and in accordingly not advising the applicant to enforce a number of contracts – where it was found the first and second respondents had failed to comply with the requirement previously mentioned – where the applicant and third and fourth respondents sought their costs against the first and second respondents – where the first and second respondents contended that the court should not allow two sets of costs to defendants where there is no possible conflict of interest between them in the presentation of their cases – whether the first and second respondents should pay the costs of the applicant and the first and second respondents
Almeida v Universal Dye Works Pty Ltd (No 2) [2001] NSWCA 156
Re Octaviar Ltd (No 8) [2010] QCA 57
Smyth v The State of Queensland [2005] QSC 193
Statham v Shepherd (No 2) [1974] 23 FLR 244
Sved v Council of the Municipality of Woollahra [1998] NSW Conv R 55–842
The Beach Retreat Pty Ltd v Mooloolaba Marina Limited [2009] 2 Qd R 356

COUNSEL:

MK Madsen for the applicant.

RPS Jackson for the first respondent.

PK O’Higgins for the second respondent.

D de Jersey for the third respondent.

D O’Brien QC for the fourth respondent.

SOLICITORS:

Mullins Lawyers for the applicant.

Bartley Cohen for the first respondent.

Barry Nilsson lawyers for the second respondent.

Thynne & Macartney for the third respondent.

Ashurst Australia for the fourth respondent.

HIS HONOUR: I'll ask my associate to provide the legal representatives with a copy of my reasons. There is no order which appears…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] QSC 426
Decision Date: 12 December 2012

CaseChat Overview and Summary

SDW Projects Pty Ltd commenced proceedings against two firms of solicitors, the first and second respondents, seeking damages for alleged negligence in relation to conveyancing transactions. The third and fourth respondents, who were also firms of solicitors, were later added as defendants for their failure to conclude that the actions taken by the first and second respondents were sufficient to comply with statutory requirements. The applicants and the third and fourth respondents sought their costs against the first and second respondents, which the latter contested on the basis that there was no conflict of interest between them in the presentation of their cases.

The court was required to decide whether the first and second respondents should bear the costs of the proceedings, including the costs of the third and fourth respondents, as sought by the applicants. The first and second respondents argued that the court should not allow two sets of costs to be awarded against them where there was no conflict of interest between them in presenting their cases.

The court held that the first and second respondents were liable to pay the costs of the proceedings as sought by the applicants. The court found that the first and second respondents had failed to comply with the statutory requirements, and their failure had caused the applicants to incur costs in bringing the proceedings. The court further held that the fact that the third and fourth respondents were also defendants did not affect the outcome, as the costs of the third and fourth respondents were incidental to the proceedings and were properly sought by the applicants.

The court ordered that the first and second respondents pay the costs of the applicant of and incidental to the proceedings and of the third and fourth respondents, to be assessed on a standard basis. The order for costs made today extend to the costs of the hearing of 20 April 2012.

Orders

Orders of the court

1. The first and second respondents pay the costs of the applicant of and incidental to the proceedings and of the third and fourth respondents, to be assessed on a standard basis.

2. The order for costs made today extend to the costs of the hearing of 20 April 2012.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	SDW Projects Pty Ltd v Modi & Ors (No 2) [2012] QSC 426
PARTIES:	SDW PROJECTS PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) ACN 110 335 923 (applicant) v SANJU MODI (first respondent) and LISA JANE CLEMENTS (second respondent) and HOLDING REDLICH (A FIRM) (third respondent) and THOMAS BRADLEY (fourth respondent)
FILE NO:	10460 of 2012
DIVISION:	Trial Division
PROCEEDING:	Application for costs
DELIVERED EX TEMPORE ON:	12 December 2012
DELIVERED AT:	Brisbane
HEARING DATE:	12 December 2012
JUDGE:	Peter Lyons J
ORDER:	1. The first and second respondents pay the costs of the applicant of and incidental to the proceedings and of the third and fourth respondents, to be assessed on a standard basis. 2. The order for costs made today extend to the costs of the hearing of 20 April 2012.
CATCHWORDS:	PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – CO–DEFENDANTS – where the applicant sued two firms of solicitors who had acted for it in relation to some conveyancing transactions – where it was alleged that those firms had been negligent in relation to compliance with a requirement of s 365(2A)(c)(ii) of the Property Agents and Motor Dealers Act 2000 (Qld) – where there were applications to add the third and fourth respondents as defendants to those actions for failing to conclude that the actions taken by the first and second respondents were sufficient to comply with those requirements and in accordingly not advising the applicant to enforce a number of contracts – where it was found the first and second respondents had failed to comply with the requirement previously mentioned – where the applicant and third and fourth respondents sought their costs against the first and second respondents – where the first and second respondents contended that the court should not allow two sets of costs to defendants where there is no possible conflict of interest between them in the presentation of their cases – whether the first and second respondents should pay the costs of the applicant and the first and second respondents Almeida v Universal Dye Works Pty Ltd (No 2) [2001] NSWCA 156 Re Octaviar Ltd (No 8) [2010] QCA 57 Smyth v The State of Queensland [2005] QSC 193 Statham v Shepherd (No 2) [1974] 23 FLR 244 Sved v Council of the Municipality of Woollahra [1998] NSW Conv R 55–842 The Beach Retreat Pty Ltd v Mooloolaba Marina Limited [2009] 2 Qd R 356
COUNSEL:	MK Madsen for the applicant. RPS Jackson for the first respondent. PK O’Higgins for the second respondent. D de Jersey for the third respondent. D O’Brien QC for the fourth respondent.
SOLICITORS:	Mullins Lawyers for the applicant. Bartley Cohen for the first respondent. Barry Nilsson lawyers for the second respondent. Thynne & Macartney for the third respondent. Ashurst Australia for the fourth respondent.