Sugiyama Corporation v Boland
[2003] QDC 134
•2 May 2003
DISTRICT COURT OF QUEENSLAND
CITATION: Sugiyama Corporation v Boland & Anor [2003] QDC 134
PARTIES:
BY COUNTERCLAIM:
SUGIYAMA CORPORATION
Plaintiff
and
CHRISTINE MARY BOLAND
First Defendant
and
SC NO 2 HOLDINGS PTY LTD (ACN 098 660 345)
Second Defendant
CHRISTINE MARY BOLAND
Plaintiff
and
SUGIYAMA CORPORATION
Defendant
FILE NO: 907/2002
DIVISION: Civil
PROCEEDING: Application for summary judgment
ORIGINATING COURT:
District Court, Southport
DELIVERED ON:
2 May 2003 DELIVERED AT: Southport
HEARING DATE: 17 March 2003
JUDGE: Alan Wilson SC DCJ
ORDER: Costs of and incidental to the plaintiff’s application for summary judgment be reserved for the trial Judge, or further order
CATCHWORDS: PRACTICE – PROCEDURE – COSTS – SUMMARY JUDGMENT APPLICATION – Plaintiff’s application for summary judgment dismissed – whether plaintiff was or ought reasonably to have been aware that defendants relied on a point or points that would entitle the defendants to have the application dismissed – what costs order should be made?
Uniform Civil Procedure Rules, rr 299, and 689
Cases considered:
Evans Deakin & Co Pty Ltd v Kaiser Engineers and Constructors Inc [1968] Qd R 379
COUNSEL: Dr C Jensen for the applicant plaintiff
Mr D A Quayle for the respondent first and second defendantsSOLICITORS: Nakano Kaneshiro Lawyers for the applicant plaintiff
Hickey Lawyers for the respondent first and second defendants
In this matter the plaintiff applied for a summary judgment but its application was dismissed, in Reasons I delivered on 10 April 2003. The parties were invited to deliver written submissions on costs at a later date, and each has done so.
The general rule is that costs should follow the event: UCPR r 689 but, under r 299 an applicant for summary judgment who “...was or ought reasonably to have been aware that an opposite party relied on a point that would entitle that party to have the application dismissed...” is at risk of a costs order against it. Indeed, that appears to be the conventional order if it appears to the Court that the plaintiff knew the defendant relied upon a contention which would entitle it to unconditional leave to defend[1].
[1] Evans Deakin & Co Pty Ltd v Kaiser Engineers and Constructors Inc [1968] Qd R 379 at 385
At para [15] of my Reasons I concluded that the conduct of the parties showed an intention that an earlier contract should be novated to a later one. The defendants assert this matter was squarely raised in their defence and counterclaim, yet the plaintiff proceeded with an application for summary judgment before it filed any reply and answer, and in reliance upon affidavit material which did not directly address that issue; so, they say, they should have their costs.
The plaintiff’s written submissions point out, however, that the defence simply denies the existence of the “first” contract; there are significant differences between the two; some subsequent acts of all the parties might be construed, sensibly, as referable only to the first; and, hence, the plaintiff was only aware of the argument which involves novation in the course of argument at the hearing.
It is also relevant, in connection with the question of costs, that questions of waiver and estoppel (discussed in my Reasons at paras [17]-[20]) were not raised in the pleadings, notwithstanding UCPR r 150 which requires that they be specifically pleaded.
In the circumstances I do not think it can be said the plaintiff’s conduct should be categorised as falling within the parameters of r 299; and, in light of the fact that the ultimate outcome of the action is quite uncertain, the proper course is to reserve the question of costs to the trial Judge.
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