Tan v Council of the City of Gold Coast

[2000] QSC 166

SUPREME COURT OF QUEENSLAND

File No 1621 of 1993
[2000] QSC 166

BETWEEN:

THOMAS TAN

Applicant – First Defendant

AND:

BONNYSIDE PTY LTD ACN 010 729 085

Applicant – Second Defendant

AND:

COUNCIL OF THE CITY OF GOLD COAST

Respondent – First Third Party

AND:

COUNCIL OF THE SHIRE OF BEAUDESERT

Respondent – Second Third Party

MOYNIHAN J –  ORDER FOR COSTS

ORDER AS TO COSTS DELIVERED:

27 June 2000

JUDGMENT DELIVERED ON:

5 June 2000

HEARING DATE:

No appearance required – written submissions as to costs submitted to the Court.

ORDER:

1.     The Third Party action against the Second Third Party is dismissed.

2.     The First Third Party should pay:

a.   the Applicant’s and the Second Third Party’s costs of the application to be assessed on the standard basis; and,

b.   the Second Third Party’s costs of and incident to its joinder as a third party to be assessed on the standard basis.

SUBMISSIONS:

Mr KN Wilson – for the First and Second Defendants  Mr WG Everson – for the First Third Party                Mr RN Traves – for the Second Third Party

1. It is necessary to dispose of the costs of the separate determination of a question pursuant to Chapter 13 Part 5 of the Uniform Civil Procedure Rules. 

1. The applicants, the defendants in the action, sought a separate determination as to which of the respondents (the first third party – the Gold Coast City Council or the second third party – the Beaudesert Shire Council) had succeeded to the liabilities of the former Albert Shire Council.

1. The application was brought in an action where the plaintiff sued the applicants for breach of contract or negligence in the construction of a dwelling house.  The applicants sought to attribute liability to the Albert Shire Council or its officers.  That Council had, however, been abolished. 

1. The applicants being uncertain as to which of the Gold Coast City or Beaudesert Shire Councils had acquired the Albert Shire Council’s liability, joined each as a third party.  Each of the third parties then contended that the other had acquired the liability.

1. For reasons which I published on 5 June, I decided that the Gold Coast City Council had succeeded to the Albert Shire Council’s liability in respect of the plaintiff’s claim with the consequence that the respondent Beaudesert Shire Council (the second third party) should be dismissed from the action. 

1. I made provision for written submissions as to costs.  These have now been received.  The submissions do not cite any specific provisions of the rules or any cases.

1. The applicants submit that their costs of determination of the separate question should be paid by the Gold Coast City Council as should the Beaudesert Shire Council’s costs of the action and the application.

1. The Beaudesert Shire Council submits the applicants should pay its costs of the action, including the application for separate determination on the basis that they have been unsuccessful in their claims against it.  It makes no submission as to any order for costs as between the applicants and the respondent Gold Coast City Council.

1. The Gold Coast City Council submits that the appropriate costs orders are that the applicants pay the Beaudesert Shire Council’s costs of the action and the application; and, that as between the applicants and the Gold Coast City Council, the costs of the application for separate determination should be costs in the cause.  In support of this, it is submitted that it would be unjust to require the Gold Coast City Council to pay the applicant’s costs since it might fail in their claim against it.

1. The determination of the separate question should in my view be treated as a distinct event for the purpose of dealing with costs.  The Gold Coast City Council should therefore pay the applicants and the Beaudesert Shire Council’s costs of the application.

1. As a result of the successful application the Beaudesert Shire Council is dismissed from the action and should have its costs.  In my view its costs of the action should be paid should be paid by the Gold Coast City Council because the latter Council unsuccessfully contented that the Beaudesert Shire Council rather than it were liable if the applicants were successful in making out a case against the former Albert Shire Council.  The issue of costs as between the third party Gold Coast City Council and the defendant respondents as a consequence of the outcome of the trial is in my view a separate consideration.

1. I therefore order:-

1.          The first third party has succeeded to the liabilities of the Albert Shire Council.

2.          The third party action against the second third party is dismissed.

3.          The first third party to pay:

(a)        the applicant defendants’ and the second third party’s costs of application to be assessed on the standard basis; and,

(b)        the second third party’s costs of and incidental to its joinder as a third party to be assessed on the standard basis.