Sutherland v Jot Property Solutions Pty Ltd (No 2) - [2015] QSC 328

SUPREME COURT OF QUEENSLAND

CITATION:

Sutherland & Anor v Jot Property Solutions Pty Ltd (No 2) [2015] QSC 328

PARTIES:

RODERICK MACKAY SUTHERLAND
and
TRAJAN JOHN KUKULOVSKI
AS LIQUIDATORS OF BLUECHIP PROPERTY SERVICES PTY LTD (IN LIQ) (ACN:108514245)
(Respondent/Plaintiff)

v
JOT PROPERTY SOLUTIONS PTY LTD (ACN:132272210)
(Applicant/First Defendant)
and
JOT INVESTMENT HOLDINGS PTY LTD
(ACN 137828507) IN ITS OWN RIGHT AND AS TRUSTEE OF THE JPI UNIT TRUST
(Applicant/Second Defendant)
and
TARA MAREE SMYTH AS TRUSTEE OF THE J&T SMYTH FAMILY TRUST
(Applicant/Third Defendant)
and
KERRY GRAHAM HOLDINGS PTY LTD (ACN:143732772) AS TRUSTEE OF THE KERRY GRAHAM TRUST
(Applicant/Fourth Defendant)

FILE NO/S:

SC 58 of 2014

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

Friday, 20 November 2015

DELIVERED AT:

Cairns

HEARING DATE:

16 October 2015 and subsequent submissions in writing.

JUDGE:

Henry J

ORDER:

1. The plaintiff pay the fourth defendant’s costs of its application filed 12 February 2015 on the indemnity basis.

2. Further consideration of the first, second and third defendants’ costs of their application filed 19 January 2015 is adjourned to 10.00 am 11 December 2015.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON AN INDEMNITY BASIS – where the fourth defendant applied to have the plaintiff’s statement of claim struck out – where the fourth defendant sought a declaration in the alternative that the plaintiff lacked standing - where the plaintiff’s statement of claim was struck out because it failed to disclose a reasonable cause of action – where the costs should follow the event – where the fourth defendant’s application was successful in the event – whether the fourth defendant’s costs should be assessed on an indemnity basis – whether the circumstances are sufficiently special or unusual to justify indemnity costs – where the plaintiff should have identified its lack of standing problem on the filing of conditional notices of intention to defend by the first, second, third and fourth defendants – where the plaintiff persisted with its existing claim – where the fourth defendant should have its costs of its application on an indemnity basis

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF PARTIES – OTHER CONDUCT – whether the first, second and third defendants should have their costs of their application on an indemnity basis – where the first, second and third defendants’ application sought orders for security for costs and for the undertaking of an inquiry by the court into the actions of the plaintiff as liquidators – where the orders made did not include rulings on those components of the first, second and third defendants’ application – whether a costs order should be made when part of an application is yet to be determined – where the parties will have an opportunity to address the costs order at a future hearing - where further consideration of the first, second and third defendants’ costs will be given after the hearing

Colgate Palmolive Co & Anor v…

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: [2015] QSC 328
Decision Date: 20 November 2015

CaseChat Overview and Summary

The case of Sutherland v Jot Property Solutions Pty Ltd (No 2) involved a dispute where the plaintiff sought to have the statement of claim struck out, as it failed to disclose a reasonable cause of action. The fourth defendant applied to have the plaintiff’s statement of claim struck out and sought a declaration that the plaintiff lacked standing. The plaintiff's statement of claim was ultimately struck out due to the aforementioned failure. The court was required to determine the appropriate costs for the proceedings, specifically whether the costs should follow the event or if there were circumstances that justified an indemnity costs order for the successful party.

The court considered whether the fourth defendant's successful application warranted an indemnity costs order. The court held that the plaintiff should have identified its lack of standing issue upon the filing of conditional notices of intention to defend by the first, second, third and fourth defendants, but persisted with its claim. This persistence was deemed unreasonable, leading the court to conclude that the circumstances were sufficiently special or unusual to justify the indemnity costs order. Additionally, the court considered the applications of the first, second and third defendants, who sought security for costs and an inquiry into the plaintiff's actions. Although part of their application was yet to be determined, the court made a preliminary costs order, with further consideration to be addressed at a later hearing.

The court's decision was to order that the plaintiff pay the fourth defendant’s costs on an indemnity basis. The costs of the first, second and third defendants' application were to be further considered at a later date, allowing the parties to address the issue in more detail. This decision highlights the court's discretion in awarding indemnity costs where a party's conduct is found to be unreasonable or where special circumstances exist. The court also acknowledged that the final determination of costs for the first, second and third defendants would be made at a subsequent hearing, ensuring a thorough examination of all relevant factors.

Orders

Orders of the court

1. The plaintiff pay the fourth defendant’s costs of its application filed 12 February 2015 on the indemnity basis.

2. Further consideration of the first, second and third defendants’ costs of their application filed 19 January 2015 is adjourned to 10.00 am 11 December 2015.

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:	Sutherland & Anor v Jot Property Solutions Pty Ltd (No 2) [2015] QSC 328
PARTIES:	RODERICK MACKAY SUTHERLAND and TRAJAN JOHN KUKULOVSKI AS LIQUIDATORS OF BLUECHIP PROPERTY SERVICES PTY LTD (IN LIQ) (ACN:108514245) (Respondent/Plaintiff) v JOT PROPERTY SOLUTIONS PTY LTD (ACN:132272210) (Applicant/First Defendant) and JOT INVESTMENT HOLDINGS PTY LTD (ACN 137828507) IN ITS OWN RIGHT AND AS TRUSTEE OF THE JPI UNIT TRUST (Applicant/Second Defendant) and TARA MAREE SMYTH AS TRUSTEE OF THE J&T SMYTH FAMILY TRUST (Applicant/Third Defendant) and KERRY GRAHAM HOLDINGS PTY LTD (ACN:143732772) AS TRUSTEE OF THE KERRY GRAHAM TRUST (Applicant/Fourth Defendant)
FILE NO/S:	SC 58 of 2014
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Mackay
DELIVERED ON:	Friday, 20 November 2015
DELIVERED AT:	Cairns
HEARING DATE:	16 October 2015 and subsequent submissions in writing.
JUDGE:	Henry J
ORDER:	1. The plaintiff pay the fourth defendant’s costs of its application filed 12 February 2015 on the indemnity basis. 2. Further consideration of the first, second and third defendants’ costs of their application filed 19 January 2015 is adjourned to 10.00 am 11 December 2015.
CATCHWORDS:	PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON AN INDEMNITY BASIS – where the fourth defendant applied to have the plaintiff’s statement of claim struck out – where the fourth defendant sought a declaration in the alternative that the plaintiff lacked standing - where the plaintiff’s statement of claim was struck out because it failed to disclose a reasonable cause of action – where the costs should follow the event – where the fourth defendant’s application was successful in the event – whether the fourth defendant’s costs should be assessed on an indemnity basis – whether the circumstances are sufficiently special or unusual to justify indemnity costs – where the plaintiff should have identified its lack of standing problem on the filing of conditional notices of intention to defend by the first, second, third and fourth defendants – where the plaintiff persisted with its existing claim – where the fourth defendant should have its costs of its application on an indemnity basis PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF PARTIES – OTHER CONDUCT – whether the first, second and third defendants should have their costs of their application on an indemnity basis – where the first, second and third defendants’ application sought orders for security for costs and for the undertaking of an inquiry by the court into the actions of the plaintiff as liquidators – where the orders made did not include rulings on those components of the first, second and third defendants’ application – whether a costs order should be made when part of an application is yet to be determined – where the parties will have an opportunity to address the costs order at a future hearing - where further consideration of the first, second and third defendants’ costs will be given after the hearing Colgate Palmolive Co & Anor v…