King v Abdel-Malik (No 2)[2018] QDC 189

DISTRICT COURT OF QUEENSLAND

2. [2]
   I have previously delivered written reasons for judgment and indicated orders I felt were appropriate on the substantial issues in dispute in this matter see King v Abdel-Malik & Ors [2018] QDC 163. I also suggested orders in relation to costs and invited the parties to make further submissions. Both parties have now provided written submissions.

3. [3]
   In those reasons I indicated that, subject to submissions concerning the form of the order, I would order:

1. That the plaintiff pay the first and second defendants’ costs of and incidental to the claim; and

2. The plaintiff also pay costs of the first defendant’s counter claim; and

3. There be no order as to the costs of the second, third and fourth defendants’ counter-claims.

4. [4]
   In the action the first and second defendants successfully resisted the plaintiff’s claim against them and the first plaintiff was successful in her counter claim against the plaintiff. The other defendants failed in their counter claim.

5. [5]
   The plaintiff in written submissions submits that whilst it is accepted that;

1. The plaintiff failed in his action for recovery of possession; and

2. The first defendant succeed in her counter claim that the plaintiff be estopped from denying the first defendant the benefit of the subject land.

He accepts also that, prima facie, she should recover costs of the claim and of her counterclaim, but submits those costs should be limited. He submitted that because the order I made was for a declaration that the first defendant held only one third of his legal ownership of the land on trust for the first plaintiff, that the order for costs should reflect the fact that two thirds of the benefit of the land remained with the plaintiff. It was submitted this would be achieved by ordering that the plaintiff pay to the first defendant only one third of the costs of the defendants in relation to the claim and counterclaim.

6. [6]
   In my view, such an order would significantly and unfairly prejudice the first defendant.

7. [7]
   In my view the plaintiffs’ submission with respect to costs:

1. Fails to properly take into account that the plaintiffs’ claim, which was only against the first and second defendants, wholly failed;

2. Fails to properly take into account that the claim by the second defendant for an interest in land, whilst part of the initial claim made against the plaintiff, and which failed, did not result in any increase in the duration or complexity of the case and did not result in any increase in the costs of the plaintiff in seeking to resist the claim against him over what he incurred in resisting the successful claim made by the first defendant;

3. Fails to properly take into account that the claim by the third and fourth defendants for an interest in the land was made only on the third day of the trial, on its resumption after a period of approximately six months and, whilst ultimately unsuccessful, did not result in any real increase in the costs incurred by the plaintiff in unsuccessfully resisting the first defendant’s counter claim for an interest in the land.

4. Fails to properly take into account the fact that the central issues in the trial concerned;

1. (a)
   The question of what the plaintiff had said in respect of ownership of the land and

2. (b)
   Whether the defendants, or any of them, had acted to their detriment by carrying out work or improvements on the said land.

These issues were determined contrary to the plaintiff’s testimony.

8. [8]
   The plaintiff sought to resist the costs order I had foreshadowed and instead sought an order that the first defendant’s “costs of an incidental to both the plaintiff’s claim and first defendant’s counterclaim be limited to one third of the standard costs to be assessed in respect of the action.” He relied on the fact that an alternative claim for equitable compensation in the sum of $100,000 and for declarations that all four defendants had an equitable interest in the land to the same extent (that is, $100,000.00) failed.

9. [9]
   Counsel for the plaintiff submitted that an order that the plaintiff pay only one third of the defendants’ total assessed costs would reflect the fact that two thirds of the benefit of the land remained with the plaintiff. It was submitted that it could not be said that the “trial has not been prolonged by the presence of an additional three defendants seeking relief against the plaintiff.” I do not accept that to be so. In my assessment the joinder of the second defendant, and the late joinder of the third and fourth defendants had no material effect on the prolongation or length of the trial.

10. [10]
    In my view it is in such circumstances appropriate to approach the matter on the basis that, as between the plaintiff and the first defendant, the first defendant was successful on both the plaintiff’s claim and on her counterclaim, and so should be entitled to her costs in respect of both matters. Further, because that the presence of the second, third and fourth defendants as parties to the counterclaim did not materially affect the costs incurred by the plaintiff, no order as to costs should be made on their counterclaims.

11. [11]
    The plaintiff was entirely unsuccessful in his claim and the determination of the first defendant’s claim relied upon the determination of factual issues concerning discussions in 2010, entirely contrary to the plaintiff’s evidence, and acceptance of her evidence about improvements she and the second defendant had made to the property, was again, contrary to the plaintiff’s evidence. Thus it can be seen that the central dominant issue in the proceeding was determined against the plaintiff.

12. [12]
    The defendant’s counsel submitted, and I accept, that in Bieto v Triline Australia Pty Ltd (No.2) [2003] QDC 307 McGill DCJ said that in certain cases there will be a “central, dominant issue of the litigation” and it was then appropriate to “treat the outcome in relation to that issue as the starting point in relation to the question of costs.”^[1]

13. [13]
    In my view issues concerning the counterclaims of the other defendants who were not successful were so closely connected with the central issue decided in the first defendant’s favour that no regard should be had to them.

14. [14]
    In making that determination I am mindful of the fact that no substantial time was involved in consideration of the work that the third and fourth defendants had done in respect of the property, and work that the second defendant had done was accepted by me as work done on behalf of the first defendant.

15. [15]
    In such circumstances it is my view that the discretion to award costs arising from r 681 of the Uniform Civil Procedure Rules should be exercised by making orders of the sort I earlier envisaged. I therefore make orders in terms of sub-paragraphs 1-7 of p 34 of my initial written reasons for judgment.

Orders

1. That the plaintiff’s claim against the first and second defendants be dismissed

2. The plaintiff is estopped from denying the first defendant the benefit of the land

3. The plaintiff holds one third of his legal ownership in the land on trust for the benefit of the first defendant.

4. The plaintiff grant the first defendant a license to occupy the land.

5. Order that the plaintiff pay the first and second defendant’s costs of and incidental to the claim and order the plaintiff also pay costs of the first defendant’s counterclaim, and such costs to be assessed..

6. The second, third and fourth defendants’ counterclaims are dismissed.

7. No order as to the costs of the second, third or fourth defendants’ counterclaims.