Homemakers North Pty. Ltd. v MJM Investments Australia Pty. Ltd. (No. 2)
[2015] QDC 38
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- Unreported Judgment
- Homemakers North Pty. Ltd. v MJM Investments Australia Pty. Ltd. (No. 2)[2015] QDC 38
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Homemakers North Pty. Ltd. v MJM Investments Australia Pty. Ltd. (No. 2)[2015] QDC 38
Homemakers North Pty. Ltd. v MJM Investments Australia Pty. Ltd. (No. 2)[2015] QDC 38
DISTRICT COURT OF QUEENSLAND
CITATION: | Homemakers North Pty Ltd v MJM Investments Australia Pty Ltd & Anor (No 2) [2015] QDC 38 |
PARTIES: | HOMEMAKERS NORTH PTY LTD (ACN010208125) (plaintiff)v MJM INVESTMENTS AUSTRALIA PTY LTD (ACN108735217) (first defendant)and MICHAEL MUCHOW (second defendant) |
FILE NO: | 4107/14 |
DIVISION: | Trial (Civil) |
PROCEEDING: | Claim |
ORIGINATING COURT: | District Court (Brisbane) |
DELIVERED ON: | 27 February 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Dorney QC, DCJ |
ORDERS: | The orders of the Court are that:
be struck out;
|
CATCHWORDS: | Costs – successful applicant overall |
LEGISLATION CITED: | Competition and Consumer Act 2010 (Cth), Schedule 2: The Australian Consumer Law, s 18 Uniform Civil Procedure Rules 1999, r 171, r 292, r 293, r 386, r 387, r 443, r 444, r 681(1), r 685(2), r 687(2)(c) |
CASES CITED: | Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48, 136 Kinsella v Gold Coast City Council (No 2) [2014] QSC 181 Murdoch v Lake [2014] QCA 269 Neray Holdings Pty Ltd v Spina (No 2) [2009] QSC 45 Sochorova v Commonwealth of Australia [2012] QCA 152 |
COUNSEL: | B D O'Donnell QC and D de Jersey for the second defendant (applicant) S J Webster for the plaintiff (respondent) |
SOLICITORS: | Bennett & Philp Lawyers for the second defendant (applicant) Cooper Grace Ward for the plaintiff (respondent) |
Introduction
- [1]On 13 February 2015 I published Reasons for the interlocutory decision made in this proceeding arising from application (in a proceeding) filed by the second defendant, relying, in the alternative, upon rr 293 and 171 of the Uniform Civil Procedure Rules 1999 (“UCPR”).
- [2]The outcome of the Reasons, for which I sought that both parties prepare short minutes of the orders necessary, was based upon the latter of the two rules mentioned.
- [3]While I did conclude that there was the potential for an arguable cause of action to be relied upon by the plaintiff against the second defendant, the overall decision I made was that the plaintiff’s present Second Amended Statement of Claim was inadequate for that purpose and crucial parts of it should be struck out, with leave to replead.
Form of orders
- [4]The Short Minutes of Orders proposed by each party are substantially the same, at least with respect to the effect of the application of r 171 of the UCPR and the leave to replead.
- [5]The differences lie in whether there should be a specific order otherwise dismissing the second defendant’s application filed on 9 December 2014 and, to be addressed later, in what costs should be ordered.
- [6]It is beyond argument that the orders to be made have the effect of determining all bases claimed by the second defendant in his application filed on 9 December 2014. There does not have to be a dismissal of some aspects of that application. Nevertheless, the “agreed” Order 1 can be modified to make that explicit. And I will do that.
- [7]Given the time when I am to hand this decision down, delayed unfortunately by other judicial commitments, I would extend the leave to replead to 9 March 2015.
Costs
- [8]Two aspects have arisen from the various submissions made on costs, with the second defendant relying on a recently filed affidavit as well. The first is whether I should limit the costs that otherwise could be paid by the plaintiff to the second defendant (of the application filed on 9 December 2014). The second is whether I should fix the amount of costs pursuant to r 685(2) of the UCPR (as governed by District Court Practice Direction No. 3 of 2007).
- [9]Rule 681(1) of the UCPR provides that costs of a proceeding, “including an application in a proceeding”, are in a discretion of the court “but follow the event”, “unless the court orders otherwise”.
- [10]Since this is an application in a proceeding, it is the remaining words of that particular rule that need to be considered here.
- [11]As decided in Murdoch v Lake,[1] the “event” [as explained by Muir JA in Alborn & HRS v Stephens & Ors (citation omitted)] is to be determined by reference to “the events or issues, if more than one, arising in the proceedings”: at [20]. Nevertheless, there is a rider to that conclusion. It is to the effect that “a party which has not been entirely successful” is not “inevitably” or even, perhaps, “normally” deprived of some of its costs: see Alborn at [8]; and Murdoch at [21].
- [12]
- [13]Here, while the particular questions argued before me ranged over a number of discrete matters – and also (as noted) involved a complementary but alternative claim for summary judgment by the second defendant – there were not really differentiated disputed questions when taken in the context where the agitated primary issue was whether there was an arguable claim successfully pleaded by the plaintiff against the second defendant based upon a breach of s 18 in Schedule 2, containing the Australian Consumer Law, to the Competition and Consumer Act 2010 (Cth). Furthermore, both the plaintiff and the second defendant vigorously contested every aspect of every different part of that integrated issue which was raised by the other party – subject to some minor concessions – relevant to this “claim”. It downplays the importance of the relevant legal and factual questions to focus on the invoices affected by the striking out.
- [14]Where it is often the case, as here, that an application relies upon r 171 argued in conjunction with reliance upon another ground such as to r 292 or r 293, it is difficult to discern that this is a circumstance in which the general principle should not remain applicable, despite “issue” being able to be distilled to “any disputed question of fact or law”. Kinsella v Gold Coast City Council (No 2)[4] is quite distinguishable as, there, McMurdo J held that the respondents to the application were “much more successful” in circumstances (where one of their pleaded causes of actions was actually struck out): at [2]. It was, therefore, unsurprising that even the respondents conceded that some allowance should be made for that: at [3].
- [15]Accordingly, particularly regarding costs applicable to an application (framed in the alternative) in the proceeding, I determine that the second defendant should not be deprived of his costs of the application as a whole. As for r 444 of the UCPR, r 443 appears not to expressly include rr 171 and 293 (whatever good practice itself might encourage).
- [16]As for the second aspect, the second defendant relies upon Neray Holdings Pty Ltd v Spina (No 2)[5]. An important point made in of the decision of Wilson J was that skilled legal costs consultants had assessed the claimed costs. Here, no such attempt has been made where I have a real concern whether the costs sought for senior counsel – although I accept the engagement of senior counsel is defensible where there is inherent complexity – would be fully recoverable on an assessment on the standard basis. That is, even if I were to be otherwise satisfied as to all of the solicitors’ costs (including the percentage for “care and consideration”), given that an assessment would be necessary in any event, I think it is appropriate in this case not to exercise the discretion given to this Court pursuant to r 687(2)(c).
- [17]Because of the detailed default provisions in the UCPR, it is unnecessary, in the order for costs, to refer to costs “of and incidental” or on “the standard basis”. As well, I am not at all satisfied that the costs relating to “leave” to amend fall within the ambit of r 386 of the UCPR, particularly since an amendment made under r 378 is one “for which leave from the court is not required” under the UCPR (emphasis added).
- [18]I will make specific orders rather than make any adjustments to the drafts given to me.