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Queensland Judgments
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  • Unreported Judgment

Laverick v Westpac Banking Corporation

 

[2020] QSC 340

SUPREME COURT OF QUEENSLAND

CITATION:

Laverick v Westpac Banking Corporation (No 2)[2020] QSC 340

PARTIES:

KEVIN JAMES LAVERICK

(Plaintiff)

v

WESTPAC BANKING CORPORATION ABN 33 007 457 141

(Defendant)

FILE NO/S:

BS No 976 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

12 November 2020

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Bowskill J

ORDER:

The plaintiff pay 70% of the defendant’s costs of the application filed on 11 September 2020, assessed on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE:  COSTS FOLLOW THE EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – costs of application to set aside the claim, or alternatively strike out the statement of claim

Uniform Civil Procedure Rules 1999 (Qld), r 681, r 684

Northern Territory v Sangare (2019) 265 CLR 164

Oshlack v Richmond River Council (1998) 193 CLR 72

COUNSEL:

The plaintiff/respondent on his own behalf

F Lubett for the defendant/applicant

SOLICITORS:

The plaintiff/respondent on his own behalf

Thomson Geer for the defendant/applicant

  1. [1]
    On 6 November 2020 I made orders striking out the whole of the plaintiff’s statement of claim, and giving limited leave to re-plead.  I dismissed the defendant’s application to set aside the claim, on the basis of a lack of standing:  Laverick v Westpac Banking Corporation [2020] QSC 333.
  2. [2]
    The defendant seeks an order that the plaintiff pay its costs of the application.  The plaintiff opposes that, and submits either that the defendant is not entitled to a costs order, or that costs “should be reserved as costs in the cause”; or, if a costs order is made, that he should be given time to pay or be able to pay the order by instalments.
  3. [3]
    The general rule about costs is that costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise:  r 681(1) UCPR.
  4. [4]
    Although the plaintiff submits this is a complex case involving multiple parties and that it is difficult to determine what the event is, that is not the case.  There are only two parties to this proceeding, and the event is that the defendant was wholly successful in that part of its application which sought to strike out the statement of claim, but not successful in that part of its application which sought to set aside the claim on the basis of a lack of standing.
  5. [5]
    Under r 684 UCPR the court has power to apportion the costs.  For that purpose, the court may declare what percentage of the costs of a proceeding is attributable to particular parts of the proceeding (or application).
  6. [6]
    This is a case in which it is appropriate to apportion the costs, because there is a clear distinction between the part of the application the defendant succeeded on, and the part that it did not.  I accept that it is fair and reasonable to make a “rough apportionment”,[1] rather than leaving the issue to be determined on an assessment.  I consider 70% to be a fair and reasonable apportionment, given that the majority of the work and effort involved on the application was in relation to the strike out, with the application to set aside being a far more confined and narrow point.
  7. [7]
    I do not accept the plaintiff’s submission that conduct on the part of Westpac, allegedly refusing to supply the original loan application form, disentitles it to a costs order in respect of the application.  Nor do I accept the submission that Westpac “invited the litigation” and on that basis is disentitled to a costs order.  The plaintiff made the choice to institute these proceedings.  The rationale behind the principle that “costs follow the event” is a matter of fairness and policy.  As McHugh J said in Oshlack v Richmond River Council (1998) 193 CLR 72 at 97: 

“Costs are not awarded to punish an unsuccessful party.  The primary purpose of an award of costs is to indemnify the successful party.  If the litigation had not been brought, or defended, by the unsuccessful party, the successful party would not have incurred the expense which it did.  As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.

As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved…” [2]

  1. [8]
    I also do not accept the submission that the defendant’s application was “in reality, a de-facto application for security for costs”.   There is absolutely no basis for that submission.
  2. [9]
    That there is a disparity between the financial position of the plaintiff and the defendant does not provide a basis for depriving the defendant of its costs of part of the application; nor does the contended impecuniosity of the plaintiff:  Northern Territory v Sangare (2019) 265 CLR 164 at [26].
  3. [10]
    In all the circumstances, I am satisfied it is appropriate to make an order that the plaintiff pay 70% of the defendant’s costs of the application filed on 11 September 2020, assessed on the standard basis.
  4. [11]
    As to the timing of that assessment, it may be that the plaintiff wishes to rely on r 682(2) UCPR, which provides that if the court awards the costs of an application in a proceeding, the court may order that the costs not be assessed until the proceeding ends.   That is not an appropriate order in the circumstances of this case, in which the costs have been incurred because the (claim and) statement of claim which was filed failed to disclose a reasonable cause of action, and had a tendency to prejudice or delay the fair trial of the proceeding.
  5. [12]
    The timing of an assessment, and enforcement of the costs order, are otherwise matters addressed by the UCPR, or which may be dealt with as between the parties.
  6. [13]
    Finally, I record that following delivery of judgment on the application on 6 November 2020 the following directions were made:
    1. (a)
      The plaintiff is to file and serve any amended claim and statement of claim by 4 pm on 15 January 2021.
    2. (b)
      The defendant, by 4 pm on 19 February 2021, is to file and serve either:
      1. an application seeking relief in relation to any amended claim and/or statement of claim filed by the plaintiff; or
      2. a defence.

Footnotes

[1] Aion Corporation Pty Ltd v Yolla Holdings Pty Ltd [2013] QSC 216 at [15].

[2] See also Northern Territory v Sangare (2019) 265 CLR 164 at [26]-[27].

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Editorial Notes

  • Published Case Name:

    Laverick v Westpac Banking Corporation

  • Shortened Case Name:

    Laverick v Westpac Banking Corporation

  • MNC:

    [2020] QSC 340

  • Court:

    QSC

  • Judge(s):

    Bowskill J

  • Date:

    12 Nov 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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