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Queensland Bulk Handling Pty Ltd v Peabody (Wilkie Creek) Pty Limited (No 2)

 

[2015] QSC 106

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

Queensland Bulk Handling Pty Ltd v Peabody (Wilkie Creek) Pty Limited (No 2) [2015] QSC 106

PARTIES:

QUEENSLAND BULK HANDLING PTY LTD

ACN 010 284 509

(plaintiff/applicant)

v

PEABODY (WILKIE CREEK) PTY LIMITED

ACN 007 683 454

(defendant/respondent)

FILE NO/S:

SC No 6085 of 2014

DIVISION:

Trial Division

PROCEEDING:

Hearing

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Philip McMurdo J

ORDER:

  1. The plaintiff pay the costs of the directions hearing held on 21 November 2014.
  2. The defendant pay the plaintiff’s costs of the proceeding to date, save that there be no order for costs incurred prior to 24 October 2014.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – where judgment was given by way of declaration in favour of the plaintiff – where the plaintiff had substantially amended its claim and statement of claim, thereby abandoning its original claim for damages and changing the substance of the plaintiff’s argument – where the plaintiff’s amended case was accepted by the court – where a further directions hearing was necessitated by the amendments to the plaintiff’s case – where the defendant argued the costs to be recovered by the plaintiff should be limited to those after amendments to the statement of claim and that the plaintiff should pay the costs of the further directions hearing – where by rule 692(2) of the Uniform Civil Procedure Rules 1999 (Qld), the plaintiff must pay the costs thrown away by amendments it made unless the court otherwise orders – the order for costs in favour of the plaintiff was limited and no order as to costs incurred prior to the date of the plaintiff’s amended claim and statement of claim and the plaintiff was ordered to pay the costs of the directions hearing

Uniform Civil Procedure Rules 1999 (Qld), r 692(2)

Queensland Bulk Handling Pty Ltd v Peabody (Wilkie Creek) Pty Limited [2015] QSC 037

SOLICITORS:

Campbell Standish Partners for the plaintiff/applicant

Johnson Winter & Slattery for the defendant/respondent

  1. On 27 February 2015, I gave judgment by a declaration in the plaintiff’s favour.  What must now be determined is the appropriate order for costs.
  2. The order sought by the plaintiff is that the defendant pay its costs to date of the proceeding, including reserved costs.  The plaintiff says that the costs should be limited to those incurred to date because there may be further relief sought in the proceeding.  The declaration which was made disposed of certain questions which, under r 483 of the Uniform Civil Procedure Rules, had been identified as issues to be determined in advance of the balance of the case.  It is unclear whether the plaintiff will seek further relief and because of that possibility, the plaintiff is right to limit its application to its costs to date. 
  3. The defendant accepts that the plaintiff “has had a large measure of success”.  It points out that not every argument for the plaintiff was accepted in my judgment.[1]  But a successful party is not usually denied an order for the payment of all of its costs simply because some of its arguments were not accepted.  And in this case, the unsuccessful arguments could not have significantly contributed to the expense of the case. 
  4. The defendant submits that an order for costs in favour of the plaintiff should be qualified in two ways.  The first is that the costs to be recovered should be limited to those after the amendments to the plaintiff’s statement of claim made on 24 October 2014.  The second is that the plaintiff should pay the costs of the directions hearing held on 21 November 2014. 
  5. The amendments made last October were substantial.  In the original claim, which was filed on 30 June 2014, the plaintiff sought to recover $113 million as damages for breach of contract.  That appeared to be upon the basis that there had been a contract between the parties for the further term which was to commence on 1 January 2015 and that the plaintiff’s loss was the loss of the benefit of that contract.  But as I discussed in reasons for judgment at an interlocutory hearing on 25 September 2014, the plaintiff’s reply was to the effect that the agreement which it alleged for that further term was one which remained on foot.  Therefore, a basis for this large damages claim was not apparent.  I then ordered that a certain question be determined ahead of other questions and set days for hearing of that question in December 2014. 
  6. The plaintiff then applied for leave to amend its claim and statement of claim.  It obtained that leave but was ordered to pay the costs of its application for leave.  By those amendments, the plaintiff abandoned its damages claim.  By r 692(2), the plaintiff must pay the costs thrown away by these amendments unless the court otherwise orders.  The plaintiff does not appear to submit that the court should otherwise order. 
  7. The case had to come back for a reformulation of the question for preliminary determination because that question had been defined by reference to the previous pleadings.  That directions hearing was held on 21 November.  Costs were then reserved.  I accept that the hearing on that day was necessitated by the amendments to the plaintiff’s case.  Therefore, the plaintiff should pay those costs.
  8. The amended statement of claim also changed the substance of the plaintiff’s argument.  The amended case, which was accepted in my judgment, was that the parties became bound by an agreement for the Option Term if what I described in the judgment as steps (2), (3) and (4) occurred.[2]
  9. Because the plaintiff’s case was so substantially amended on 24 October, I am persuaded that the plaintiff should not have its costs of the proceeding prior to that date.  Most importantly, the plaintiff should not recover the costs of suing for a sum of damages for which there was no prospect of an award.
  10. Therefore, the orders will be:
    1. The plaintiff pay the costs of the directions hearing held on 21 November 2014.
    2. The defendant pay the plaintiff’s costs of the proceeding to date, save that there be no order for costs incurred prior to 24 October 2014.

Footnotes

[1] See, eg [2015] QSC 37, 14-15 [52].

[2] See [2015] QSC 37, 11 [31].

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Editorial Notes

  • Published Case Name:

    Queensland Bulk Handling Pty Ltd v Peabody (Wilkie Creek) Pty Limited (No 2)

  • Shortened Case Name:

    Queensland Bulk Handling Pty Ltd v Peabody (Wilkie Creek) Pty Limited (No 2)

  • MNC:

    [2015] QSC 106

  • Court:

    QSC

  • Judge(s):

    McMurdo J

  • Date:

    04 May 2015

Litigation History

No Litigation History

Appeal Status

No Status