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  • Unreported Judgment

Viclee Nominees Pty Ltd v Team Venture Pty Ltd (No 2)

 

[2009] QSC 77

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Viclee Nominees Pty Ltd v Team Venture Pty Ltd (No 2) [2009] QSC 77

PARTIES:

VICLEE NOMINEES PTY LTD

ACN 004 994 441

(Plaintiff)

v

TEAM VENTURE PTY LTD

ACN 118 344 737

(Defendant)

FILE NO/S:

BS 11238 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

8 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

White J

ORDER:

The defendant pay the plaintiff’s costs of and incidental to the proceedings for possession of the premises.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE - COSTS FOLLOW THE EVENT – COSTS OF ISSUES – where judgment given in favour of plaintiff landlord for possession of leased premises – where defendant seeks for each party to bear its own costs in the application – whether discretion should be exercised under r 681 Uniform Civil Procedure Rules 1999 (Qld) in awarding costs

Electricity Act 1994 (Qld)

Retail Shop Leases Regulation 2006 (Qld)

Uniform Civil Procedure Rules 1999 (Qld), r 681

Bucknell v Robins [2004] QCA 474, cited

Viclee Nominees Pty Ltd v Team Venture Pty Ltd [2009] QSC 47, cited

COUNSEL:

Mr M Amerena for the plaintiff

The defendant with leave by its director Kathy Tan Chai Fong

SOLICITORS:

Jonathan C Whiting as town agent for Bolster & Co. for the plaintiff

The defendant appeared on its own behalf through its directors

  1. On 12 March 2009 judgment was given in favour of the plaintiff landlord that it was entitled to possession of certain premises at Broadbeach.[1]  Directions were made about costs submissions on the basis that the plaintiff, having been completely successful, was prima facie entitled to its costs.  Rule 681 of the Uniform Civil Procedure Rules is the general rule about costs and provides:

“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.”

  1. The defendant tenant who operated a Chinese restaurant on the premises appeared on the several hearings represented by a director, Ms Kathy Tan. The plaintiff was successful on the proper construction of the contract between the parties about the requirement to pay electricity separately metered to the demised premises.
  1. The defendant has had a long standing disagreement with the plaintiff about both the alleged partial failure of the air conditioning provided to its premises and the cost of the electricity. It had tried, without success, to have these issues resolved by means of negotiation. It is in part because of that history that the defendant submits that there ought to be no order as to costs, or rather, that each party should pay its own costs.
  1. A court must exercise its discretion pursuant to r 681 judicially. In Bucknell v Robins[2] Philippides J, with whom the President and Williams JA agreed, said:[3]

“The discretion in awarding costs is a wide one but it must be exercised judicially and not by reference to irrelevant considerations (Latoudis v Casey (1990) 170 CLR 534).  As explained by McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72, the general or usual order as to costs, that a successful party in litigation is entitled to an order of costs in its favour, is grounded in reasons of fairness and policy.  There are limited exceptions to the usual order as to costs, which focus “on conduct of the successful party which disentitles it to the beneficial exercise of the discretion” (Oshlack at 98 per McHugh J) or on the existence of “special” or “exceptional” circumstances (Oshlack at 120 and 126 per Kirby J).”

  1. The defendant supports its submission by reference to the ambiguous expressions in the lease about the charge for metered electricity. The defendant contends that if it had been clearly expressed in the Reference Schedule to the lease that this electricity was payable then there would have been no dispute and undue hardship would have been avoided. It may be accepted that commercial leases are often ponderous in expression, opaque in meaning and lengthy so that a concise summary of “what you must pay”[4] might well benefit both parties, but there is no obligation on the drafting party (usually the landlord) to do so.  Whilst ascertaining the true meaning of the provisions in this lease required some care it was not very complex.  The lack of clarity, such as it was, is no reason to deprive a successful plaintiff of its costs.
  1. The defendant now makes mention of the absence of an independent third party authority to monitor the accuracy of the electricity meter about which it has had concerns for some time. No provision in the Electricity Act 1994 (Qld) appears to have been breached by the plaintiff as an “on supplier” of electricity and this was adverted to in the principal reasons.
  1. The submissions state that the defendant (and, presumably, the directors) has lost its entire savings in the restaurant business and its staff their employment. It is unable to meet the plaintiff’s legal costs. The consequences for the defendant of this dispute with the plaintiff have been dire but the defendant has been unable to identify any relevantly disentitling conduct by the plaintiff which would deprive it of its costs.
  1. Finally, the defendant submits:

“The Defendant also wishes to seek clarifications in this submission from Her Honour that upon payment of arrears claimed by the plaintiff less any entitled deductions (refer letter dated 16/3/09), that there will be no more claims imposed on the Defendant and its guarantors.  The Defendant is required to vacate the premise and hand over the premise on 30th March 2009.  Rent is charged to 31st March 2009.”

This court is unable to advise the defendant about these matters in these proceedings.

  1. No issue has been raised by the defendant which would cause this court to exercise its discretion other than in accordance with the general rule about costs. Accordingly, the order is that the defendant pay the plaintiff’s costs of and incidental to the proceedings for possession of the premises.

Footnotes

[1] Viclee Nominees Pty Ltd v Team Venture Pty Ltd [2009] QSC 47.

[2] [2004] QCA 474.

[3] At para [17].

[4] The disclosure statements under the Retail Shop Leases Regulation 2006 (Qld) no doubt go some way to identifying items of importance to the contracting parties.

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Editorial Notes

  • Published Case Name:

    Viclee Nominees Pty Ltd v Team Venture Pty Ltd (No 2)

  • Shortened Case Name:

    Viclee Nominees Pty Ltd v Team Venture Pty Ltd (No 2)

  • MNC:

    [2009] QSC 77

  • Court:

    QSC

  • Judge(s):

    White J

  • Date:

    08 Apr 2009

Litigation History

No Litigation History

Appeal Status

No Status