Varandra Holdings Pty Ltd v Bevan (No 2)

SUPREME COURT OF QUEENSLAND

CITATION:

Varandra Holdings Pty Ltd v Bevan (No 2) [2024] QSC 231

PARTIES:

Varandra Holdings Pty Ltd

(Applicant)

v
Adam John Bevan

(Respondent)

FILE NO/S:

9161 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application – Costs

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

27 September 2024

DELIVERED AT:

Brisbane

HEARING DATE:

15 August 2024

JUDGE:

Ryan J

ORDER:

The Applicant, Varandra Holdings Pty Ltd, is to pay the Respondent, Adam John Bevan’s, costs of the application to set aside the statutory demand, filed 15 July 2024, on an indemnity basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – RELEVANT CONSIDERATIONS GENERALLY – where the applicant was unsuccessful in bringing its application to set aside a statutory demand – where the dispute about the debt was not genuine or bona fide – where costs sought by the respondent on an indemnity basis – whether an indemnity costs order ought to be made.

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397

LPD Holdings (Aust) Pty Ltd & Anor v Phillips, Hickey and Toigo & Ors [2013] QCA 305

Varandra Holdings Pty Ltd v Bevan [2024] QSC 203

COUNSEL: 

M Hall (solicitor) for the applicant
W Attoh for the respondent

SOLICITORS:

Hall Lawyers for the applicant
Legal Made Easy for the respondent

1. On 5 September 2024, I delivered judgment in this matter.  I dismissed the applicant’s application to set aside the respondent’s statutory demand on the basis that the dispute about the debt raised by the applicant was not a genuine dispute and was not made bona fide. In dismissing the application, I invited the parties to make written submissions as to costs.

2. Written submissions were received from the respondent on 19 September 2024, seeking costs on an indemnity basis. The respondent relied upon: (a) its success in the application; (b) the “futile or hopeless” nature of the applicant’s case; and (c) the applicant’s unreasonable rejection of an earlier offer by the respondent, which necessitated the proceedings. The respondent alternatively seeks costs on an indemnity basis from 7 May 2024 when the offer was made, with standard costs prior to this date; or in the further alternative, costs on a standard basis.

3. The applicant did not file written submissions. An email from the applicant’s solicitor was received by my Associate on 20 September 2024, stating only that “no detailed submissions will be provided Costs should follow the event and that in the circumstances an award of party and party costs is appropriate.”

4. The detailed facts that gave rise to the application are set out in the judgment of 5 September 2024. Briefly, the respondent’s written Costs submissions revealed the following chronology:

   (a)On 18 June 2021, the parties signed a Share Sale and Purchase Agreement, whereby the applicant agreed to buy all of the respondent’s shares in Trade Wind Capital Markets Pty Ltd…