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Queensland Judgments
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Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 11)

 

[2020] QSC 5

SUPREME COURT OF QUEENSLAND

CITATION:

Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors (No 11) [2020] QSC 5

PARTIES:

First Plaintiffs: SANRUS PTY LTD AS TRUSTEE OF THE QC TRUST ACN 097 049 315

AND

Second Plaintiffs: EDGE DEVELOPMENTS PTY LTD AS TRUSTEE OF THE KOWHAI TRUST ABN 26 010 309 529

AND

Third Plaintiffs: H&J ENTERPRISES (QLD) PTY LTD AS TRUSTEE OF THE H&J TRUST ACN 077 333 736

AND

First Defendants: MONTO COAL 2 PTY LTD ACN 098 919 414

AND

Second Defendants: MONTO COAL PTY LTD ACN 098 393 072

AND

Third Defendants: MACARTHUR COAL LIMITED ACN 096 001 955

FILE NO/S:

SC No BS8609/07

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED:

31 January 2020

DELIVERED AT:

Brisbane 

HEARING DATE:

On the papers

JUDGE:

Bond J

ORDER:

The orders of the Court are:

1. The plaintiffs have leave nunc pro tunc to discontinue the whole of the claim against the first and second defendants.

2. By consent, there be no order as to costs of the proceeding as between the plaintiffs and the first and second defendants.

3. By consent, there be no order as to costs in respect to the claim against the third defendant. 

COUNSEL:

On the papers

SOLICITORS:

Holding Redlich for the plaintiffs

Allens for the defendants

BOND J:

  1. [1]
    In this proceeding, judgment was given in favour of the third defendant on 29 November 2019, but the question of the appropriate costs order was adjourned: see Sanrus Pty Ltd v Monto Coal 2 Pty Ltd & Ors (No 10) [2019] QSC 297.  Argument in relation to the issues which remained as between the plaintiffs and the first and second defendants was concluded on 12 December 2019, and I reserved my judgment.
  2. [2]
    By email dated 24 January 2020, the parties advised the Court that they had agreed to discontinue the proceeding with no order as to costs. To effect that settlement, the plaintiffs filed a notice of discontinuance in a form generally in accordance with form 27 which was signed by both the plaintiffs’ solicitors and the defendants’ solicitors and dated 24 January 2020.  The form provided, relevantly:

TAKE NOTICE that the First Plaintiff, Second Plaintiff and Third Plaintiff (the Plaintiffs) discontinue the whole of the claim against the First Defendant and Second Defendant (the Defendants) with no order as to costs.

The First Defendant and the Second Defendant consent to this discontinuance.

  1. [3]
    By their email the parties enquired of the Court whether any further information was required from them.
  2. [4]
    Once the email and the notice was drawn to my attention, I caused my associate to raise the following matters with the parties:

First, rule 304 does not appear to authorise the plaintiffs to “discontinue the whole of the claim ... with no order as to costs”, notwithstanding that the first and second defendants consent to that course.  That outcome could presumably have been obtained if leave was sought to discontinue and the court invited (because all parties consented to that course) to grant leave to discontinue and then to make an order that “there be no order as to costs”.  His Honour invites suggestions as to the correctness of this observation, and, if so, the appropriate procedural course to ensure that the discontinuance has been brought about in a regular way.  It occurs to His Honour that an order nunc pro tunc that the plaintiffs have leave to discontinue, and a consent order that “there be no order as to costs of the proceeding as between the plaintiffs and the first and second defendants” might be an acceptable course. 

Second, judgment was given in favour of the third defendant in Sanrus Pty Ltd v Monto Coal 2 Pty Ltd & Ors (No 10) [2019] QSC 297, but the question of the appropriate costs order adjourned.   It seems to His Honour that some order should be made finally disposing of that question.  His Honour invites the parties’ submissions on the appropriate course.

  1. [5]
    As to the first matter, the parties agreed with my suggestion and communicated that they would consent to an order in these terms:

THE COURT ORDERS THAT –

  1. The plaintiffs have leave nunc pro tunc to discontinue the whole of the claim against the first and second defendants.

BY CONSENT THE COURT ORDERS THAT –

  1. There be no order as to costs of the proceeding as between the plaintiffs and the first and second defendants.
  1. [6]
    As to the second matter, the parties proposed an order in these terms:

BY CONSENT THE COURT ORDERS THAT –

  1. Pursuant to paragraph 3 of the judgment made in Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors (No 10) [2019] QSC 297, there be no order as to costs in respect to the claim against the third defendant.
  1. [7]
    In light of the parties’ settlement and their response to the matters which I raised, this is undoubtedly an appropriate occasion to grant leave to discontinue.  Rule 307(2) provides that “If a party discontinues or withdraws with the court’s leave, the court may make the order for costs it considers appropriate.”  Again, in light of the parties’ settlement and their response to the matters I raised, the only appropriate exercise of that power is to do so in a way which gives effect to the parties’ settlement.  The same conclusion applies in relation to the costs of the claim against the third defendant.
  2. [8]
    For the foregoing reasons, I make the following orders:
  1. The plaintiffs have leave nunc pro tunc to discontinue the whole of the claim against the first and second defendants.
  1. By consent, there be no order as to costs of the proceeding as between the plaintiffs and the first and second defendants.
  1. By consent, there be no order as to costs in respect to the claim against the third defendant.
Close

Editorial Notes

  • Published Case Name:

    Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors (No 11)

  • Shortened Case Name:

    Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 11)

  • MNC:

    [2020] QSC 5

  • Court:

    QSC

  • Judge(s):

    Bond J

  • Date:

    31 Jan 2020

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2018] QSC 30819 Dec 2018Plaintiffs' application for leave to rely on reports delivered outside a Court directed timetable allowed; plaintiffs' application for leave to amend their statement of claim granted; consequential alterations to Court directed timetable allowed; defendants' cross-application for an order that plaintiff not be permitted to rely on certain expert reports refused; plaintiffs' to pay defendants' costs thrown away on the indemnity basis: Bond J.
Primary Judgment[2019] QSC 14407 Jun 2019Plaintiffs' application for further disclosure pursuant to r 223(1)(b) of the Uniform Civil Procedure Rules 1999 (Qld) on the grounds of waiver of privilege dismissed (with ancillary directions as to document removal and redaction): Flanagan J.
Primary Judgment[2019] QSC 16226 Jun 2019Plaintiff's application for leave to adduce further expert evidence (and other ancillary orders) part way through the hearing of a trial refused: Bond J.
Primary Judgment[2019] QSC 18501 Aug 2019Defendants' application for leave to rely on two affidavits as lay evidence mid-way through trial granted subject to conditions: Bond J.
Primary Judgment[2019] QSC 19912 Aug 2019Plaintiffs' application for leave to rely at trial on new material in the joint expert reports and consequential leave to amend the plaintiffs' statement of claim granted; defendants granted leave to rely at trial on responsive expert reports: Bond J.
Primary Judgment[2019] QSC 21027 Aug 2019Provisional rulings on defendants' objections to expert evidence: Bond J.
Primary Judgment[2019] QSC 21429 Aug 2019Consequential directions as a result of the Court of Appeal's (majority) decision in [2019] QCA 160: the plaintiffs have leave to produce a further report from Mr Chris Hartley by 3 September 2019 with ancillary directions as to what the evidence is to be directed to: Bond J.
Primary Judgment[2019] QSC 24127 Sep 2019Plaintiffs' not permitted to advance an unpleaded advice case; plaintiff's granted leave to rely on an expert report, but not for the plaintiffs' unpleaded advice case; rulings on defendants' objections to plaintiffs' expert evidence (following on from Bond J's provisional rulings in [2019] QSC 210): Bond J.
Primary Judgment[2019] QSC 25514 Oct 2019Rulings on plaintiffs' objections to expert evidence: Bond J.
Primary Judgment[2019] QSC 29729 Nov 2019Second and third defendants' application for judgment in light of the plaintiffs' amendments to the consolidated statement of claim on 29 November 2019; plaintiffs' claim against the third defendant dismissed; second defendant's application for judgment adjourned to a date to be fixed: Bond J.
Primary Judgment[2020] QSC 531 Jan 2020Upon the parties' settlement: the plaintiffs have leave nunc pro tunc to discontinue the whole of the claim against the first and second defendants (with no order as to costs): Bond J.
Notice of Appeal FiledFile Number: Appeal 6710/1927 Jun 2019-
Appeal Determined (QCA)[2019] QCA 16020 Aug 2019Appeal from [2019] QSC 162 allowed; orders made on 18 June 2019 set aside; appellants permitted to adduce expert evidence in the form of the report of Mr Chris Hartley filed 10 June 2019 (save for certain paragraphs): McMurdo JA and Bradley J (Applegarth J dissenting).

Appeal Status

Appeal Determined (QCA)
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