DISTRICT COURT OF QUEENSLAND
CITATION:
WOHB Pty Ltd v Williams & Anor (No. 2) [2024] QDC 209
PARTIES:
WOHB PTY LTD
(ACN 624 271 969)
(plaintiff)
v
JUSTIN GREGORY WILLIAMS AS TRUSTEE OF THE WILLIAMS FAMILY TRUST
(first defendant)
andANITA MARIA NIVALA AS TRUSTEE OF THE WILLIAMS FAMILY TRUST
(second defendant)FILE NO:
1380/19
DIVISION:
Trial
PROCEEDING:
Civil
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
13 December 2024
DELIVERED AT:
Brisbane
HEARING DATE:
9 September 2024 (re costs)
JUDGE:
Dearden DCJ
ORDER:
1. I order that WOHB Pty Ltd, Mitchell Robert McIlwain and Graeme William McIlwain pay the defendants’ costs of the proceedings on an indemnity basis, fixed at $182,826.95.
CATCHWORDS:
COSTS APPLICATION – whether costs should be awarded on a standard basis or an indemnity basis – whether costs should be awarded against the plaintiff and the director of the plaintiff – whether, in addition to costs ordered against the plaintiff and the director of the plaintiff, costs should also be awarded against a non-party
LEGISLATION:
Uniform Civil Procedure Rules 1999 (Qld) rr 681 & 702
CASES:
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
WOHB Pty Ltd v Williams & Anor [2024] QDC 94
Kozak v Matthews & Anor [2007] QSC 204
Manly v The Public Trustee of Queensland (No. 2) [2008] QSC 47
J & D Rigging Pty Ltd v Agripower Australia Limited & Ors [2014] QCA 23
Calderbank v Calderbank [1976] Fam 93
Trouton v Trouton & Anor (No. 3) [2024] QSC 54
Knight v FP Special Assets Ltd (1992) 174 CLR 178
SJG Developments Pty Ltd v NT Two Nominees Pty Ltd (in liq) [2020] QSC 104
Jones & Anor v Aussie Networks Pty Ltd & Ors [2019] QSC 111
Dwyer v Nel [2021] QCA 165FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340
COUNSEL: S Fisher for the plaintiff
R Ivessa for the first and second defendants
SOLICITORS: Stolar Law for the plaintiff
Mullins Lawyers for the first and second defendants
The first and second defendants, Justin Gregory Williams and Anita Maria Nivala, were successful at trial both in their defence of the plaintiff WOHB Pty Ltd’s claim and in their counterclaim.[1]
The defendants, in an application filed 4 July 2024, seek orders for costs on an indemnity basis against the plaintiff, Mitchell Robert McIlwain and Graeme William McIlwain on an indemnity basis; alternatively that the plaintiff and Graeme William McIlwain pay the defendants’ costs on an indemnity basis; alternatively the plaintiff and Mitchell Robert McIlwain pay the defendants’ costs on an indemnity basis; or finally, in the alternative, that the plaintiff pay the defendants’ costs on an indemnity basis.[2]
[2]Application filed 4 July 2024.
The defendants were wholly successful at trial and the default order that follows would ordinarily be an order that the plaintiff pay the defendants’ costs on a standard basis unless the court orders otherwise.[3]
[3]Uniform Civil Procedure…
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- Case
- [2024] QDC 209
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court revolved around the assessment of costs under the Uniform Civil Procedure Rules and the inherent jurisdiction to manage litigation costs effectively. The court had to consider whether the plaintiff's conduct warranted costs on an indemnity basis, given the frivolous nature of the claims and the unnecessary prolongation of the proceedings. Additionally, the court needed to decide if the plaintiff and its director's actions constituted misconduct under the Colgate categories, justifying the award of indemnity costs against them. Furthermore, the court examined whether a non-party should also be held liable for costs due to their involvement in the litigation.
In its reasoning, the court found that the plaintiff's claims of fraudulent misrepresentation were baseless and irrelevant, contributing to an overall cavalier approach to the litigation. The court concluded that the proceedings were commenced and continued in disregard of known facts and established law, leading to an unnecessary and wasteful use of court resources. The plaintiff's refusal to accept competent legal advice and their persistence with groundless contentions resulted in significant costs being incurred. The court determined that the plaintiff's conduct fell under the Colgate categories of misconduct, justifying the award of indemnity costs. Accordingly, the court ordered that WOHB Pty Ltd and its director, Mitchell Robert McIlwain, pay the defendants' costs of the proceedings on an indemnity basis, amounting to $182,826.95.
Orders
Orders of the court
1. I order that WOHB Pty Ltd, Mitchell Robert McIlwain and Graeme William McIlwain pay the defendants’ costs of the proceedings on an indemnity basis, fixed at $182,826.95.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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