Westpac Banking Corporation v Djeldic
[2018] QDC 231
•13 November 2018
DISTRICT COURT OF QUEENSLAND
CITATION:
Westpac Banking Corporation v Djeldic [2018] QDC 231
PARTIES:
WESTPACE BANKING CORPORATION (ABN 33 007 457 141) (Plaintiff)
V
ANDREW NICHOLAS DJELDIC (Defendant)
FILE NO/S:
944/17
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
13 November 2018
DELIVERED AT:
Brisbane
HEARING DATE:
On the papers
JUDGE:
Porter QC DCJ
ORDER:
The defendant pay 75% of the plaintiff’s costs of the application on a standard basis.
CATCHWORDS:
CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – POWER TO ORDER – where the defendant failed to obtain any of the relief sought in the application – where the plaintiff seeks costs of the application on the indemnity basis – whether it is appropriate to order costs on an indemnity basis on any of the grounds advanced by the plaintiff.
COUNSEL:
S Eggins for the plaintiff
SOLICITORS:
MinterEllison for the plaintiff
On 5 February 2018 I heard and determined an application by the Defendant to strike out the plaintiff’s SOC and for the provision of certain particulars. The Defendant contended that the SOC failed to articulate a cause of action and was not properly particularised.
The defendant failed to obtain any of the relief sought in the application. However, I did order that particulars be given of one paragraph of the SOC.
At the time of determining the application I directed the parties to file submissions on costs. The plaintiff provided submissions to my associate on 20 February 2018. I have placed a copy of those submissions on the file.
On 27 February 2018, the defendant sent an email without notice to the plaintiff’s solicitors seeking an extension of time to file his submissions. My associate responded pointing out that it was not appropriate to correspond with the Court without first seeking the consent of the other party. There does not appear to have been any further correspondence from the defendant.
The defendant’s email of 27 February 2018 contained a submission giving reasons why an extension of time should be granted. Relevantly, the defendant sought an extension of time pending submissions to the Financial Ombudsman by the plaintiff arising out of his complaint to the Financial Ombudsman. As I read the submission, the defendant sought an extension of time to have his complaint dealt with. The date of 19 March 2018 was identified in that submission as a relevant date, being the date for submissions by the plaintiff to the Financial Ombudsman. It was not clear whether a further period was sought.
In those circumstances I overlooked this matter until gently reminded by the plaintiff on 12 November 2018. As matters have transpired, the defendant received the extension sought. No submissions on costs have been received from the defendant since the submission seeking an extension.
The plaintiff submitted that it was entitled to costs on an indemnity basis for one or more of three reasons:
(a)First, because the Court should properly exercise its discretion in respect of costs consistently with the entitlement to costs of enforcement of the mortgage on “a full indemnity basis” provided for in the terms of the mortgage;
(b)Second, because the application was so hopeless as to amount to an abuse of process; and
(c)Third, because of an offer in the nature of a Calderbank offer that the application be dismissed and the parties bare their own costs.
The premise of each submission is that the defendant failed completely in its application. While it is literally true that the defendant failed to sustain the specific relief sought on the application, the result of the hearing was the order for further particulars of paragraph 8 of the statement of claim. In those circumstances, the application could not be characterised as being fruitless and I do not consider it appropriate to order costs on an indemnity basis on any of the grounds advanced.
However, the application was entirely unsuccessful on the grounds advanced and virtually all of the costs arising from the application were incurred in dealing with those matters.
In the circumstances, I order that the defendant pay 75% of the plaintiff’s costs of the application on a standard basis.
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