SEQ Homemaker One Pty Ltd v Spar Corporate Pty Ltd (No 2)

[2015] QDC 255

DISTRICT COURT OF QUEENSLAND

CITATION:

SEQ Homemaker One Pty Ltd v Spar Corporate Pty Ltd & Ors (No 2) [2015] QDC 255

PARTIES:

SEQ HOMEMAKER ONE PTY LTD as trustee for the SEQ HOMEMAKER TRUST 1 ACN 154 270 783
(plaintiff)

and

SPAR CORPORATE PTY LTD ACN 120 856 279
(first defendant)

and

DIGWOOD PTY LTD ACN 010 342 873
(second defendant)

and

SPAR AUSTRALIA PTY LTD ACN 102 281 167
(third defendant)

FILE NO/S:

1163/15

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

13 October 2015

DELIVERED AT:

Dalby

HEARING DATE:

On the papers. Plaintiff’s written submissions undated and first defendant’s written submissions undated.

JUDGE:

Smith DCJA

ORDER:

I order that the first defendant is to pay 60% of the plaintiff’s costs of and incidental to the application filed 15 June 2015 as agreed or assessed on the standard basis.

CATCHWORDS:

COSTS- whether should follow the event or be apportioned

Uniform Civil Procedure Rules 1999 (Q) rr 681, 702

SEQ Homemaker One Pty Ltd v Spar Corporate Pty Ltd & Ors [2015] QDC 238

Woodside Energy Ltd v Zaghloul (No 2) [2015] FCAFC 143

COUNSEL:

Mr P. Somers for the plaintiff

Mr B. Le Plastrier for the first defendant

SOLICITORS:

Russells for the plaintiff

Clamenz lawyers for the first defendant

Introduction

1. This is the Court’s decision consequent on the decision made in this matter on 24 September 2015.[1] 

   [1]SEQ Homemaker One Pty Ltd v Spar Corporate Pty Ltd & Ors [2015] QDC 238.

Plaintiff’s submissions

1. The plaintiff submits that the first defendant should pay the plaintiff’s costs of and incidental to the application.  It is submitted that costs should follow the event.  It is submitted that the majority of the application concerned the striking out of the first defendant’s estoppel claim.  It is further submitted that indemnity costs are sought pursuant to r 171(2) on the basis that numerous opportunities were given by the plaintiff to the first defendant to rectify its pleading before proceeding with the application.  There have been six versions of the defence and counterclaim.  The last five drafts attempted to deal with the plaintiff’s various criticisms of the pleadings. 

1. The plaintiff provided more than a reasonable opportunity to the first defendant to amend its pleading.  In those circumstances, indemnity costs are appropriate.

1. In respect of the unsuccessful part of the plaintiff’s application, only a short portion of the application concerned the first defendant’s rectification claim.  Additionally, although paragraphs 4 to 5 of the counterclaim were not struck out, it is relevant that the Court identified that further particulars were necessary.

First defendant’s submissions

1. The defendant, on the other hand, submits that the plaintiff’s primary position was that the first defendant’s pleading as to estoppel should be struck out on the basis that the correspondence was without prejudice.  It is submitted the plaintiff overlooked a body of case law against its primary position.  The primary position was abandoned on the day of the hearing. 

1. It is further submitted that whilst the plaintiff succeeded in relation to the estoppel claim, the strikeout was not final in effect.  The misleading or deceptive conduct aspect of the application was not pressed.  Further, the first defendant was put to the expense of preparing submissions in relation to the failed strikeout rectification plea and prepared submissions elucidating the difference between unconscionability as an element of the cause of action and the cause of action itself.

1. It is therefore submitted that both parties have partial success and, whilst both parties deserved their costs in respect of their respective successes, the appropriate order is there be no order as to costs.

1. The first defendant also relied on the decision of Woodside Energy Ltd v Zaghloul (No 2)[2] by way of example.

   [2][2015] FCAFC 143.

Disposition

1. It is true that the usual rule is that costs follow the event.[3]  However, of course the court may order otherwise.  Further, the usual rule is that costs are to be assessed on the standard basis unless the court provides otherwise.[4] 

   [3]Rule 681 Uniform Civil Procedure Rules 1999 (Q).

   [4]Rule 702(1).

1. In this case, after having considered the submissions, I consider it appropriate that the first defendant pay 60% of the plaintiff’s costs.  The reasons for this are as follows:

(a)        the plaintiff succeeded on a significant issue, that is the strikeout of the estoppel claim;

(b)        the first defendant succeeded on the rectification issue, a matter which required less attention that the estoppel point;

(c)        the misleading or deceptive conduct point was not pressed by the plaintiff;

(d)        the first defendant has had a number of opportunities to correct its pleadings as pointed out in the plaintiff’s submissions;

(e)        The plaintiff did change its position at the time of the hearing.

1. In the circumstances where there was some success by both parties, but success on the part of the plaintiff on the significant issue argued, it seems to me appropriate that the first defendant pay 60% of the plaintiff’s costs. 

1. As to issue of indemnity costs, I do not consider they are appropriate in light of the issues raised by the first defendant particularly the change in the primary position.

1. I therefore order that the first defendant pay 60% of the plaintiff’s costs of and incidental to the application filed on 15 June 2015 as agreed or assessed on the standard basis.