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  • Unreported Judgment

J & MD Milligan Pty Ltd v Queensland Building Services Authority (No 2)

 

[2012] QSC 262

 

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

J & MD MILLIGAN PTY LTD ACN 126 855 749

(applicant)

v

QUEENSLAND BUILDING SERVICES AUTHORITY

(respondent)

FILE NO:

Trial

PROCEEDING:

Costs applications

DELIVERED ON:

12 September 2012

DELIVERED AT:

Brisbane 

HEARING DATE:

Written submissions

JUDGE:

Margaret Wilson J

ORDER:

1.The plaintiff pay the defendant’s costs of and incidental to the application filed by the plaintiff on 20 June 2012, including reserved costs if any, assessed on the standard basis;

2.The plaintiff pay half of the defendant’s costs of and incidental to the application filed by the defendant on 9 July 2012, including reserved costs if any, assessed on the standard basis.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE - COSTS FOLLOW THE EVENT  – COSTS OF WHOLE ACTION – GENERALLY – where plaintiff’s application for leave to amend its claim and for interlocutory injunction was refused – where defendant’s application for an order striking out the whole or part of the statement of claim partially succeeded – where defendant sought costs on the indemnity basis –  whether costs should be on the indemnity or standard basis

COUNSEL:

R E Schulte for the plaintiff

J C Bell QC and T F Pincus for the defendant

SOLICITORS:

R J Winter & Associates for the plaintiff

Minter Ellison for the defendant

[1] MARGARET WILSON J: The plaintiff’s application for leave to amend its claim to add a cause of action in estoppel and for an interlocutory injunction was refused. The defendant’s application for summary judgment or alternatively for an order striking out the whole or part of the statement of claim succeeded only to the extent that three paragraphs of the statement of claim were struck out.

[2] The applications were heard together on 13 July 2012. The interlocutory injunction was refused on 16 July 2012. On 14 August 2012 I refused the balance of the plaintiff’s application, ordered that three paragraphs of the second amended statement of claim be struck out, and refused summary judgment for the defendant. The paragraphs struck out related to estoppel and an interlocutory injunction.

[3] The plaintiff seeks the following orders as to costs –

(a) that there be no order as to costs with respect to the plaintiff’s application filed on 20 June 2012;

(b) that the defendant pay the plaintiff’s costs of and incidental to the defendant’s application filed on 9 July 2012.

[4] The defendant seeks the following orders –

(a) that the plaintiff pay the defendant’s costs of and incidental to the plaintiff’s application filed on 20 June 2012 on the indemnity basis;

(b) that the plaintiff pay the defendant’s costs of and incidental to the defendant’s application filed on 9 July 2012, or alternatively, that the costs of and incidental to that application be the defendant’s costs in the cause.

[5] The matters founding my decision on the applications to amend the claim and to strike out all or part of the statement of claim were largely canvassed before the hearing in correspondence and before another Judge who made orders by consent adjourning the hearing.

[6] The defendant should have its costs (including reserved costs, if any) of and incidental to the plaintiff’s application, on which it was wholly successful. As counsel for the defendant submitted, the plaintiff had ample opportunity to abandon its attempt to run the estoppel case and seek an injunction. But in my view that is not a sufficient reason to order that those costs be assessed on the indemnity basis. Accordingly those costs should be assessed on the standard basis.

[7] The defendant had only partial success on its application. The plaintiff filed some material in response to the summary judgment application. The defendant did not formally abandon that part of its application, but did not pursue it in any real sense.

[8] Although only three paragraphs of the statement of claim were ordered to be struck out, they were critical to the estoppel case and the interlocutory injunction application - on both of which the plaintiff failed.

[9] In the circumstances I consider that the defendant should recover half of its costs of its own application.

[10] I order –

(a) that the plaintiff pay the defendant’s costs of and incidental to the application filed by the plaintiff on 20 June 2012, including reserved costs if any, assessed on the standard basis;

(b) that the plaintiff pay half of the defendant’s costs of and incidental to the application filed by the defendant on 9 July 2012, including reserved costs if any, assessed on the standard basis.

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Editorial Notes

  • Published Case Name:

    J & MD Milligan P/L v Queensland Building Services Authority (No 2)

  • Shortened Case Name:

    J & MD Milligan Pty Ltd v Queensland Building Services Authority (No 2)

  • MNC:

    [2012] QSC 262

  • Court:

    QSC

  • Judge(s):

    M Wilson J

  • Date:

    12 Sep 2012

Litigation History

No Litigation History

Appeal Status

No Status