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Goldvine Pty Ltd As Trustee For The Cooper No 2 Family Trust v Paris Properties Pty Ltd As Trustee For The Parisi Family Trust[2017] QDC 112

Goldvine Pty Ltd As Trustee For The Cooper No 2 Family Trust v Paris Properties Pty Ltd As Trustee For The Parisi Family Trust[2017] QDC 112

DISTRICT COURT OF QUEENSLAND

CITATION:

Goldvine Pty Ltd As Trustee For The Cooper No 2 Family Trust v Paris Properties Pty Ltd As Trustee For The Parisi Family Trust & others [2017] QDC 112

PARTIES:

GOLDVINE PTY LTD AS TRUSTEE FOR THE COOPER NO 2 FAMILY TRUST ACN 010 832 578
(plaintiff)

v

PARIS PROPERTIES PTY LTD AS TRUSTEE FOR THE PARISI FAMILY TRUST ACN 002 516 949
(first defendant)

and

QUESTGALE PTY LTD ACN 099 516 949
(second defendant)

and

CASTLESHIP PTY LTD ACN 100 104 201
(third defendant)

and

MICHAEL DOMINIC PARISI
(fourth defendant)

FILE NO/S:

D53/2015

DIVISION:

Civil

PROCEEDING:

Application on the papers

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

8 May 2017

DELIVERED AT:

Southport

HEARING DATE:

On the papers

JUDGE:

McGinness DCJ

ORDER:

The plaintiff pay the defendants’ costs of, and incidental to the proceedings to be assessed on the indemnity basis.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Di Carlo v Dubois & Ors [2002] QCA 225

COUNSEL:

SOLICITORS:         

M. R Bland for the Defendants

DCL & Associates for the Plaintiff

QBM Lawyers for the Defendants

  1. [1]
    On 6 April 2017, I dismissed the plaintiff’s claim for costs or expenses arising on default of the first defendant on a loan agreement, and claim against the other defendants as guarantors. The plaintiff was wholly unsuccessful in its claim. The parties subsequently provided written submissions regarding orders as to costs.
  1. [2]
    The defendants submit that an order should be made under r 703(1) UCPR for costs, and that costs payable by the plaintiff be assessed on the indemnity basis. The defendant relies on two grounds, namely, the plaintiff’s case had no chance of a successful outcome, and the plaintiff’s conduct amounts to misconduct.
  1. [3]
    The plaintiff submits any order for costs in favour of the defendant should be on a standard basis because there has been no misconduct on behalf of the plaintiff in bringing the proceedings or otherwise during the conduct of proceedings which would warrant the making of an indemnity costs order. The plaintiff further submits that this was not a case where the plaintiff ought to have determined there was no chance of success and that the findings in the proceedings do not justify the making of an indemnity costs order.
  1. [4]
    For the reasons stated in my judgment, I am of the view this is a matter where the plaintiff was at least attempting to commit an offence pursuant to s 347 of the Property Agents and Motor Dealers Act (2000).  The fact that, because of the terms of the agreement between the plaintiff and Slater, it was unable to commit that offence does not detract from its moral culpability in attempting to do so.  In those circumstances, it seems to me that the plaintiff’s conduct, in attempting to commit a criminal offence, can be characterised as wrongdoing for the purposes of the principle in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, where wrongdoing was said to be one of the species of conduct by a party which can justify an order for indemnity costs against that party, though it is also established that in an appropriate case indemnity costs can be awarded for conduct which falls short of actual wrongdoing.  That decision has frequently been applied in Queensland, including by the Court of Appeal[1].  
  1. [5]
    In my view, for the plaintiff to attempt to pursue in this proceeding a demand for such a large amount by way of costs and expenses, in circumstances which amounted to an attempt to commit an offence against the 2000 Act, amply justifies an order for indemnity costs against it.
  1. [6]
    Accordingly I order the plaintiff pay the costs of the proceedings to be assessed on the indemnity basis.

Footnotes

[1] For example, in Di Carlo v Dubois & Ors [2002] QCA 225.

Close

Editorial Notes

  • Published Case Name:

    Goldvine Pty Ltd As Trustee For The Cooper No 2 Family Trust v Paris Properties Pty Ltd As Trustee For The Parisi Family Trust

  • Shortened Case Name:

    Goldvine Pty Ltd As Trustee For The Cooper No 2 Family Trust v Paris Properties Pty Ltd As Trustee For The Parisi Family Trust

  • MNC:

    [2017] QDC 112

  • Court:

    QDC

  • Judge(s):

    McGinness DCJ

  • Date:

    08 May 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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