Waterless Systems (Aust) Pty Ltd v Mulholland

SUPREME COURT OF QUEENSLAND

[2001] QSC 041

File No S1171 of 2000

BETWEEN:

WATERLESS SYSTEMS (AUS) PTY LTD

Plaintiff

AND:

JOHN NELSON MULHOLLAND and SUZANNE MARIE MULHOLLAND

First Defendants

AND:

SOUTH PACIFIC TIMBER PTY LTD

Second Defendant

MOYNIHAN J – REASONS FOR JUDGMENT

DELIVERED ON:

9 March 2001

HEARING DATE:

8 February 2001

ORDER:

That the solicitors for the Mulhollands pay the costs the subject of the order of 8 February 2001 from 5 September 2000.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF PARTIES – Other Conduct – Whether solicitors liable for indemnity costs where application for trial made prematurely.

COUNSEL:

Mr T C Somers for the Plaintiff
Mr P Hackett for the Defendants

SOLICITORS:

McKays Solicitors for the Plaintiff

Elliott and Harvey Solicitors for the Defendants

1. For reasons which will emerge it is convenient to refer to the parties by an abbreviation of their name rather than by their place in the action.

1. When this action came on for trial on 8 February 2001 Waterless Systems (Aus) was given leave by consent to discontinue its claim with no order as to costs.  After submissions, the Mulhollands’ application to amend the defence and counterclaim was dismissed, the defence and counterclaim struck out, the trial date vacated and the trial adjourned.  Orders were made joining additional parties and directions were given as to the progress of the action.  The counterclaiming defendants now have carriage of the action as plaintiffs on the counterclaim.

1. An order was made that Waterless Systems (Aus) costs of:

(i)         the application to amend the defence and counterclaim;

(ii)       the application to strike out the defence and counterclaim;

(iii)      thrown away by striking out the defence and counterclaim; and

(iv)       thrown away by the vacating of the trial dates and the adjournment of the trial

be assessed up to and including 4 September 2000 on a standard basis and there after on an indemnity basis. The Mulhollands were ordered to pay costs up to and including 4 September and the issue of the payment of costs after that date was reserved. The solicitor for the Mulhollands who is presently responsible for the conduct of the action was directed to swear and deliver to my Associate an affidavit addressing, in terms of the applicable provisions of the Uniform Civil Procedure Rules and Practice Direction 4 of 2000:

(i)         the terms of the application for trial date;

(ii)       a letter of 6 February 2001 (it canvassed a range of matters about the trial);

(iii)      vacating of the trial dates.

1. That affidavit has now been filed.  I have received written submissions and no indication that the parties desire to make further oral submissions.  I therefore propose disposing of the reserved costs.

1. The letter of 6 February 2001 and the surrounding circumstances demonstrate that it ought to have been appreciated when the application for trial date was signed on behalf of the Mulhollands on 23 August 2000 that there were unresolved issues about the identity of…