Mackay Labour Hire Pty Ltd v J M Kelly (Project Builders) Pty Ltd (No. 2)
[2015] QDC 209
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- Unreported Judgment
- Mackay Labour Hire Pty Ltd v J M Kelly (Project Builders) Pty Ltd (No. 2)[2015] QDC 209
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Mackay Labour Hire Pty Ltd v J M Kelly (Project Builders) Pty Ltd (No. 2)[2015] QDC 209
Mackay Labour Hire Pty Ltd v J M Kelly (Project Builders) Pty Ltd (No. 2)[2015] QDC 209
DISTRICT COURT OF QUEENSLAND
CITATION: | Mackay Labour Hire Pty Ltd v J M Kelly (Project Builders) Pty Ltd (No. 2) [2015] QDC 209 |
PARTIES: | MACKAY LABOUR HIRE PTY LTD ACN 130 813 295 v J M KELLY (PROJECT BUILDERS) PTY LTD ACN 010 280 412 |
FILE NO/S: | 84/2013 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court at Mackay |
DELIVERED ON: | 25 August 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers. Plaintiff’s submissions filed 10 August 2015. Defendant’s submissions filed 10 August 2015. |
JUDGE: | Smith DCJA |
ORDER: | The costs of the applications are to be reserved to the trial judge. |
CATCHWORDS: | COSTS – whether should be reserved Building and Construction Industry Payments Act 2004 (Q) s 19 Uniform Civil Procedure Rules 1999 (Q) r 681 Queensland Building Services Authority Act 1991 (Q) s 42 Mackay Labour Hire Pty Ltd v J M Kelly (Project Builders) Pty Ltd [2013] QDC 196 Oshlack v Richmond River Council (1998) 193 CLR 72 Deeson Heavy Haulage Pty Ltd v Cox (No. 2) [2009] QSC 348 |
COUNSEL: | Mr M. de Ward for the plaintiff Mr B. Codd for the defendant |
SOLICITORS: | Macrossan and Amiet for the plaintiff Dibbs Barker for the defendant |
Introduction
- [1]This is my determination as to the issue of costs consequent on the judgment I delivered in this matter.[1]
- [2]The plaintiff submits the court should order the defendant to pay its costs of its application on a standard basis and on the defendant’s application on an indemnity basis.
- [3]The defendant on the other hand submits that there is good reason why an order for costs ought to be made in its favour.
Submissions
- [4]The plaintiff submits that the plaintiff’s application sought only two orders, namely the striking out of certain paragraphs of the defendant’s pleading and a declaration about the withdrawal of admissions. It is submitted that the striking out application occupied all of the time of the hearing and the declaration regarding the withdrawal of admissions became futile because of the defendant’s application to seek leave to withdraw admissions. It is submitted the plaintiff was entirely successful on its strike out application and therefore it is appropriate to grant the plaintiff its costs of this application on a standard basis. It further submits as to the defendant’s applications, only the defendant’s application for leave to withdraw admissions and for the extension of time to file and serve its counterclaim were successful. The application for extension of time was never opposed by the plaintiff. The application to withdraw admissions was opposed by the plaintiff and the defendant succeeded on this. Despite that, the issue took up no hearing time, was heard on the papers, was borne only from the defendant’s non-compliance with the rules and the court granted the defendant an indulgence. It is submitted that as to the strike out application the plaintiff ought be granted costs on an indemnity basis as the application was “hopeless” and never had any prospect of succeeding. It is further submitted that it was not appropriate at all for the strike out application to be heard on the first day of the trial.
- [5]On the other hand the defendant submits that the applications could have been addressed most efficiently and without cost to the parties at the commencement of the trial. It submits that the plaintiff’s success on the issue estoppel point is at best a Pyrrhic victory. It is submitted upon complaint made by the plaintiff as to the unavailability of issue estoppel on 7 July 2015 the defendant promptly addressed the complaint in a manner to obviate the need of an interlocutory application as threatened by the plaintiff. The withdrawal of the admissions and leave to file the counterclaim were procedural matters which were able to be addressed at trial. There was also the unexplained abandonment of the relief sought in the originating process, namely a judgment debt pursuant to s 19 of the Building and Construction Industry Payments Act 2004 (Q). It is submitted the defendant responded promptly to the plaintiff’s complaints, amended the defence to clarify the nature of the defence pressed and in the process obviated any need for the determination of the issue estoppel point prior to the substantive hearing. It is ultimately submitted that these matters raised in the interlocutory application could easily have been addressed at trial.
Law
- [6]Rule 681 of the Uniform Civil Procedure Rules 1999 provides:
“681 General rule about costs
- (1)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.
- (2)Subrule (1) applies unless these rules provide otherwise.”
- [7]In Oshlack v Richmond River Council[2]McHugh J noted that this general principle is grounded in reasons of fairness and policy. In Deeson Heavy Haulage Pty Ltd v Cox (No. 2)[3]McMeekin J noted that the factors to be considered include whether the party was successful in terms of the eventual orders, whether a party was guilty of relevant misconduct, whether there was success on a significant majority of issues and the time taken in argument.
Disposition
- [8]In this case whilst it is true a significant part of the hearing was concerned with the issue estoppel point, the plaintiff continued to oppose leave to withdraw the admissions. This was in circumstances where it was clear that the defendant was taking the s 42 point[4]and it was also clear that the admissions needed to be withdrawn to regularise the pleadings.
- [9]On the issue estoppel point the outcome was not necessarily certain in light of the way Kingham DCJ expressed different parts of the earlier judgment. It seems common ground that the plaintiff was not appropriately licensed and in those circumstances there are real issues as to whether it is entitled to bring a claim apart from s 42(4) of the QBSA Act. It is true that the plaintiff was ultimately successful on the point, but may not be ultimately. It is also a point which could have easily been debated at the trial. Many of the issues discussed are the same issues to be debated at trial. I note in this regard the defendant did propose to the plaintiff that this point be debated at trial,[5]which was rejected by the plaintiff.[6]
- [10]On the other hand of course the defendant pressed its position at the application concerning issue estoppel and was unsuccessful in this.
- [11]In all of the circumstances in the exercise of my discretion I propose to reserve all costs to the trial judge.
- [12]The order is that the costs of the applications be reserved to the trial judge.
Footnotes
[1] Mackay Labour Hire Pty Ltd v J M Kelly (Project Builders) Pty Ltd [2015] QDC 196.
[2] (1998) 193 CLR 72 at [67].
[3] [2009] QSC 348 at [61]-[81] per McMeekin J.
[4] Section 42 of the Queensland Building Services Authority Act 1991 (Q) (“QBSA Act”).
[5] Affidavit of Francesco Nardone sworn 28 July 2015 (document 31) Exhibit FXN7 at page 34.
[6] Ibid., Exhibit FXN9 at page 63.