Virgtel Ltd v Zabusky (No 2)

SUPREME COURT OF QUEENSLAND

CITATION:

Virgtel Ltd & Ors v Zabusky & Ors (No 2) [2022] QSC 55

PARTIES:

VIRGTEL LIMITED

(first applicant)

AND

VIRGTEL GLOBAL NETWORKS NV
(second applicant)

AND

VISCAYA ARMADORA SA (INCORPORATED IN PANAMA)
(third applicant)

AND

VISCAYA ARMADORA SA (INCORPORATED IN ANGUILLA) (DEREGISTERED)
(fourth applicant)

v

HARVEY ZABUSKY

(first respondent)

AND

AMALIA ZABUSKY
(second respondent)

AND

EREZ ZABUSKY
(third respondent)

AND

COMMSLOGIC PTY LTD (DEREGISTERED) ACN 109 057 543
(fourth respondent)

AND

SOFTQUEST SOLUTIONS PTY LTD ACN 057 679 599
(fifth respondent)

AND

VIRGIN TECHNOLOGIES LIMITED

(sixth respondent)

FILE NO:

BS 6547 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application for costs

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

24 June 2021

JUDGE:

Jackson J

ORDER:

The order of the Court is that the respondents pay the applicants’ costs of the questions set down on 12 April 2021 and heard on 24 June 2021.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – PARTIAL SUCCESS – where the proceeding was dismissed for want of prosecution and the Court set down for hearing certain questions – where the respondents succeeded only on questions conceded by the applicants that did not require argument – where the applicants succeeded on the remaining disputed questions – whether the respondents should pay the applicants’ costs of those questions

Virgtel Ltd & Ors v Zabusky & Ors [2021] QSC 284, cited

Civil Proceedings Act 2011 (Qld), s 15, s 20
Uniform Civil Procedure Rules 1999 (Qld), r 681(1) and 693(1).

COUNSEL:

Written submissions by the parties’ solicitors

SOLICITORS:

James Conomos Lawyers for the first to third applicant
Hayes & Co Lawyers for the first, second, third and fifth respondents

JACKSON J:

1. On 4 March 2021, the respondents filed an application to dismiss the proceeding for want of prosecution.

2. On 12 April 2021, the Court ordered the proceeding be dismissed for want of prosecution and set down for hearing the questions:

   (a)whether the applicants should pay the respondents’ costs of the proceeding and the application to dismiss for want of prosecution;

   (b)whether costs ordered to be paid should be assessed on the indemnity basis;

   (c)whether the respondents are entitled to set off any costs orders made in their favour against earlier orders that they pay the applicants’ costs of interlocutory proceedings in the proceeding; and

   (d)how moneys to be paid into Court by the applicants under the 12 April 2021 order are to be dealt with or disbursed.

3. On 24 June 2021, on the hearing of those questions:

   (a)as to question (a), it was not in dispute that the Court should order that the applicants pay the respondents’ costs of the proceeding including the costs of the application to dismiss for want of prosecution.  

   (b)as to question (b), it was disputed whether those costs should be ordered to be assessed on the indemnity basis.  

   (c)as to question (c), it was not in dispute that…