Tyrrell v McNab Constructions Pty Ltd (No 2)

[2013] QDC 182

DISTRICT COURT OF QUEENSLAND

CITATION:

Tyrrell & Anor v McNab Constructions Pty Ltd & Ors (No 2) [2013] QDC 182

PARTIES:

KELLIE TYRRELL
(first plaintiff)

and

MARK JOHN ROBERT
(second plaintiff)

v

McNAB CONSTRUCTIONS PTY LTD
ACN 073311681
(first defendant)

and

MICHAEL JON McNAB
(second defendant)

and

LISA McNAB
(third defendant)

FILE NO:

D30/2013

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Toowoomba

DELIVERED ON:

9 August 2013

DELIVERED AT:

Rockhampton

HEARING DATE:

On the papers

JUDGE:

Smith DCJ

ORDER:

The respondent plaintiffs pay 50% of the applicant defendants’ costs of and incidental to the application on the standard basis as agreed or assessed.

CATCHWORDS:

COSTS- Should costs follow the event- departure from ordinary rule- different issues

Uniform Civil Procedure Rules 1999 (Qld) rr 5, 444, 681, 684

Bucknell v Robbins [2004] QCA 474

Oshlack v Richmond River Council (1998) 193 CLR 72

COUNSEL:

Mr T. Matthews of counsel for the Applicant Defendants

Hon M. Foley of counsel for the Respondent Plaintiffs 

SOLICITORS:

Holding Redlich for the Applicant Defendants

Clifford Gouldsen Lawyers for the Respondent Plaintiffs

Introduction

1. This is the court’s decision concerning costs of the application brought by the defendants against the plaintiffs. 

1. I delivered the decision in this matter on 19 July 2013.  My decision was that the statement of claim should be struck out but the application to strike out the claim itself should be refused (see Tyrrell and Anor v McNab Constructions Pty Ltd and Ors [2013] QDC 165).

1. I gave the plaintiffs 28 days within which to re-plead their case.

Submissions

1. The applicant defendants have submitted that r 681 of the Uniform Civil Procedure Rules 1999 (Qld) provides that the general rule about costs is that costs are in the discretion of the court but follow the event unless the court orders otherwise.

1. The applicant defendants rely on Oshlack v Richmond River Council (1998) 193 CLR 72 and Bucknell v Robbins [2004] QCA 474. It is submitted by the defendants that they were wholly successful in their achieving the relief sought and accordingly costs should follow the event.

1. The defendants further submit that there is no reason under r 684 to reduce the defendants’ costs.

1. On the other hand the plaintiffs submit that there is an express power under r 684 to declare that a percentage of the costs of a proceeding is attributable to the question to which the order relates. It is further submitted that the defendants refused to specify their case prior to the hearing which is contrary it is submitted to r 5(1). It is submitted by the plaintiffs that they had been successful in resisting the submissions of the defendants that the action should be struck out.

1. It is therefore submitted it is open to the court to declare under r 684(2) as to what percentage of the costs of the proceeding are attributable to the various questions.

1. It is submitted by the plaintiffs that the defendants’ costs should be reduced by fifty percent having regard to the plaintiffs’ success in resisting the defendants’ submissions to strike out the action.

1. The plaintiffs further submit that whilst the defendants were not obliged to comply with the requirements of r 444, the defendants chose not to raise their concerns in correspondence. The plaintiffs’ solicitors wrote to the defendants on 2 July 2013 seeking for an explanation as to the basis for the strike out application. It is submitted that the defendants were coy in their reply. It is submitted it was not until the receipt of the defendants’ written submissions that the plaintiffs were able to see and consider the true basis of the defendants’ application to strike out.

1. It is submitted that the conduct of the defendants in failing to specify their case until hearing meant that the plaintiffs had no realistic opportunity to re-plead their case and were obliged to contest the proceedings. 

Determination

1. Having considered both submissions it is my determination that the respondent plaintiffs pay fifty percent of the applicant defendants’ costs of and incidental to the application on a standard basis.

1. In my view there may be a departure from the ordinary rule in this case as:

(a)        The defendants were not successful in striking out the entire action (as they contended for); and

(b)         The precise nature of the application was not notified to the plaintiffs.

1. In those circumstances the justice of the situation in my view is met by such an order.

1. In the circumstances I order that the respondent plaintiffs pay 50% of the applicant defendants’ costs of and incidental to the application on the standard basis as agreed or assessed.