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WOHB Pty Ltd v Williams (No. 2)[2024] QDC 209

WOHB Pty Ltd v Williams (No. 2)[2024] QDC 209

DISTRICT COURT OF QUEENSLAND

CITATION:

WOHB Pty Ltd v Williams & Anor (No. 2) [2024] QDC 209

PARTIES:

WOHB PTY LTD

(ACN 624 271 969)

(plaintiff)

v

JUSTIN GREGORY WILLIAMS AS TRUSTEE OF THE WILLIAMS FAMILY TRUST

(first defendant)

and

ANITA MARIA NIVALA AS TRUSTEE OF THE WILLIAMS FAMILY TRUST

(second defendant)

FILE NO:

1380/19

DIVISION:

Trial

PROCEEDING:

Civil

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

13 December 2024

DELIVERED AT:

Brisbane

HEARING DATE:

9 September 2024 (re costs)

JUDGE:

Dearden DCJ

ORDER:

  1. I order that WOHB Pty Ltd, Mitchell Robert McIlwain and Graeme William McIlwain pay the defendants’ costs of the proceedings on an indemnity basis, fixed at $182,826.95.

CATCHWORDS:

COSTS APPLICATION – whether costs should be awarded on a standard basis or an indemnity basis – whether costs should be awarded against the plaintiff and the director of the plaintiff – whether, in addition to costs ordered against the plaintiff and the director of the plaintiff, costs should also be awarded against a non-party

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld) rr 681 & 702

CASES:

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

WOHB Pty Ltd v Williams & Anor [2024] QDC 94

Kozak v Matthews & Anor [2007] QSC 204

Manly v The Public Trustee of Queensland (No. 2) [2008] QSC 47

J & D Rigging Pty Ltd v Agripower Australia Limited & Ors [2014] QCA 23

Calderbank v Calderbank [1976] Fam 93

Trouton v Trouton & Anor (No. 3) [2024] QSC 54

Knight v FP Special Assets Ltd (1992) 174 CLR 178

SJG Developments Pty Ltd v NT Two Nominees Pty Ltd (in liq) [2020] QSC 104

Jones & Anor v Aussie Networks Pty Ltd & Ors [2019] QSC 111

Dwyer v Nel [2021] QCA 165

FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340

COUNSEL:

S Fisher for the plaintiff

R Ivessa for the first and second defendants

SOLICITORS:

Stolar Law for the plaintiff

Mullins Lawyers for the first and second defendants

  1. [1]
    The first and second defendants, Justin Gregory Williams and Anita Maria Nivala, were successful at trial both in their defence of the plaintiff WOHB Pty Ltd’s claim and in their counterclaim.[1]
  2. [2]
    The defendants, in an application filed 4 July 2024, seek orders for costs on an indemnity basis against the plaintiff, Mitchell Robert McIlwain and Graeme William McIlwain on an indemnity basis; alternatively that the plaintiff and Graeme William McIlwain pay the defendants’ costs on an indemnity basis; alternatively the plaintiff and Mitchell Robert McIlwain pay the defendants’ costs on an indemnity basis; or finally, in the alternative, that the plaintiff pay the defendants’ costs on an indemnity basis.[2]
  3. [3]
    The defendants were wholly successful at trial and the default order that follows would ordinarily be an order that the plaintiff pay the defendants’ costs on a standard basis unless the court orders otherwise.[3]
  4. [4]
    The issues for the court then are as follows:
    1. whether costs should be awarded on a standard basis or an indemnity basis (and if on an indemnity basis, from what date);
    2. whether costs should be awarded against the plaintiff and the non-party Mitchell McIlwain (the plaintiff concedes that any costs order should be made against Mitchell McIlwain given that he undertook to step out of the corporate veil of the plaintiff with respect to any costs orders);[4]  and
    3. whether, in addition to costs ordered against the plaintiff and Mitchell McIlwain, costs should also be awarded against non-party Graeme McIlwain.

Indemnity costs

  1. [5]
    It is common ground between the parties[5] that the indemnity costs issue involves the application of the principles contained in Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, 233.  Those were identified by Sheppard J as follows:

“It is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion:

  1. the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131, 152);
  2. evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo);
  3. the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J – Corp);
  4. the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata);
  5. an imprudent refusal of an offer to compromise (e.g. Messiter v Hutchinson  (1987) 10 NSWLR 525, Maitland Hospital v Fisher (No. 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal), Crisp v Keng (Supreme Court of New South Wales, 27 September 1993, unreported, Court of Appeal);  and
  6. an award of costs on an indemnity basis against a contemnor (e.g. Megarry V-C in EMI Records).

Other categories of cases are to be found in the reports.  Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis.  The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis”.[6] 

The making of baseless/irrelevant allegations of fraud

  1. [6]
    The further amended statement of claim by the plaintiff filed 9 September 2022 at [36] alleged:

“In the premises, the defendants have fraudulently misrepresented the property for sale to the extent they misled the plaintiffs as to the development applications afoot on the neighbouring property prior to entering into the auction agreement”.

  1. [7]
    In essence, the allegation appears to have been that the defendants knew of a proposed future development by Wesley Mission next door to the subject property before an option was granted to the plaintiffs, and by not disclosing this knowledge the defendants engaged in conduct that was a misrepresentation.  Further, the statement of claim pleaded at [82] that prior to 7 February 2018, the first defendant had received a notice of entry from the Wesley Mission’s architect to permit access for a survey, and at [88] and [99], that Peter Edwards, a director of Wesley Mission’s architect, had informed Graeme McIlwain that he had a conversation with the first defendant prior to 3 April 2018 by which the first defendant was alleged to have become aware of the proposed development.
  2. [8]
    The defendants submit that the plaintiff did not have a factual basis to make or maintain the allegation that the defendants knew of the neighbouring development, at least since the delivery of the defendants’ disclosure. The plaintiff then had documents originating from Wesley Mission and its agents confirming that “no notice of entry” was ever issued.[7] This was confirmed by the evidence given by Mr Edwards, called by the plaintiff as a witness at trial. Mr Edwards gave evidence that no notice of entry was sent; that he had received correspondence from the first defendant in early 2019; and that he did not recall having a phone call with Graeme McIlwain.[8] 
  3. [9]
    The defendants submit (and I accept) that the plaintiff did not have a legal basis for an allegation of fraudulent misrepresentation. There was no obligation on the defendants to volunteer information about a potential neighbouring development. In any event, the misrepresentation case was abandoned at the end of the third day of trial,[9] by which stage the defendants had been required to respond to that aspect of the claim.
  4. [10]
    On the other hand, the plaintiff submits that there were “bases for the fraudulent misrepresentation allegation”[10] but asserts that the court should not make a finding that the fraudulent misrepresentation claim was baseless or irrelevant.
  5. [11]
    With respect, the fraudulent misrepresentation allegations were but one part of an entirely cavalier approach by the plaintiff to this litigation, which resulted in a failure to properly investigate the factual matrix which underpinned the allegation, and a failure to appreciate the relevant basis on which to plead such an allegation.  Accordingly, I conclude, without hesitation, that the fraudulent misrepresentation claim was, in fact, baseless or irrelevant.

Proceedings commenced/continued in disregard of known facts or established law

  1. [12]
    These proceedings were, in my view, commenced and continued in circumstances where a clear and objective view of the facts and the relevant and applicable law should have identified from the outset that the proceedings were bound to fail.  It is possible that a component of this failure to identify and appreciate that the proceedings were doomed was that the plaintiff received legal advice from the same law firm in the negotiations for the option agreement as well as in the litigation that followed. It is self-evident that either the plaintiff did not receive competent and objective legal advice in respect of the facts and the law, or, in the alternative, that the plaintiff, through its director, failed to accept any such advice, if it was given.
  2. [13]
    This observation of course, applies relevantly in respect of the making of baseless and/or irrelevant allegations of fraud, and also in respect of the plaintiff’s claim for rectification of the option agreement for mistake as to the period for exercise of the option.  In fact, as I concluded in the substantive decision, the plaintiff was well aware that the change of the option period from six months to five months was a deliberate change, as discussed in an email between the parties dated 27 February 2018.[11]

Misconduct causing loss of time to the court or parties/allegations ought not to have been made/undue prolongation of case by groundless contentions

  1. [14]
    I accept the submission on behalf of the defendants that the allegations of fraud and claims for rectification for mistake also fall into the second and fourth Colgate categories and further, the pleading that the antecedent 10 February 2018 agreement should be relied upon, despite it being subsumed by the 23 March 2018 option agreement for “clear and inescapable of reasons”,[12] resulted in the undue prolongation of the case by groundless contentions.
  2. [15]
    Similarly, the issues raised in respect of trusteeship of the trust in which the property was held and the issues related to a former trustee remaining recorded on the title of the property, were matters that were either factually incorrect or legally of no consequence and similarly complicated and unnecessarily prolonged the trial.[13]

Imprudent refusal of offers to compromise

  1. [16]
    As the defendants have identified, they made a number of offers of compromise in an attempt to conclude the dispute on commercial terms namely:
    1. a Calderbank offer on 16 November 2018 (before the proceedings were commenced) open for fourteen days, to pay the plaintiff $10,000 on the basis that the plaintiff provide the documents it was required to provide (the failure to provide those documents was the basis for the successful counterclaim) and the parties enter into a settlement deed giving mutual releases[14] (the 2018 offer);
    2. an offer made under Chapter 9 Part V of the UCPR on 24 June 2019, open for fourteen days from service, to pay the plaintiff $5,000 on the basis that the parties enter into a settlement deed giving mutual releases[15] (the 2019 Rules offer);
    3. a Calderbank offer on 14 June 2023, open for seven days, to pay the plaintiff $20,000[16] (the 2023 offer).
  2. [17]
    The defendants, correctly, identify that at the time the 2019 Rules offer was made, the UCPR only catered for offers made by unsuccessful defendants whose offer was more generous than the outcome received by the plaintiff, and accordingly offers made pursuant to the UCPR by wholly successful defendants prior to 23 June 2023 should be treated as Calderbank offers[17].
  3. [18]
    The defendants also identify, correctly, the relevant principle pursuant to Calderbank offers that:

“… a court may depart from the usual order that costs follow the event and are to be assessed on the standard basis … if the unsuccessful party rejected (or did not accept) a more favourable offer of compromise.  Rejection (or non-acceptance) of a superior offer does not automatically or even presumptively, trigger an award of indemnity costs – the court will consider whether, in all of the circumstances of the case, the rejection (or non-acceptance) of the offer was imprudent or unreasonable.”[18]

  1. [19]
    As J & D Rigging Pty Ltd v Agripower Australia Limited & Ors identifies,[19] the court should ordinarily have regard to the following factors:
    1. the stage of the proceeding at which the offer was received;
    2. the time allowed to the offeree to consider the offer;
    3. the extent of the compromise offered;
    4. the offeree’s prospects of success, assessed as at the date of the offer;
    5. the clarity with which the terms of the offer were expressed;  and
    6. whether the offer foreshadowed an application for indemnity costs in the event of the offeree rejecting it.
  2. [20]
    The 2018 offer was made before proceedings commenced but, it is submitted, at a stage (16 November 2018) at which the difficulties in the plaintiff’s case ought to have been readily apparent.  The offer was open for fourteen days and was an offer to pay $10,000 to the plaintiff (undoubtedly a realistic commercial assessment, where the defendants believed that they had no liability to pay anything to the plaintiff).  It was therefore an offer of real compromise and would have averted litigation.
  3. [21]
    The defendants identify that as at November 2018, the plaintiff’s prospects of success were extremely poor given[20]:
  1. “(a)
    the plaintiff did not purport to exercise the option within the period specified in the option agreement;
  1. the plaintiff did not comply with the formal requirements of exercising the option (including the provision of the relevant notices and the provision of a cheque for the deposit);
  1. there was no basis to seek rectification of the option period for mistake as the plaintiff was aware that there was no mistake as to the option period;
  1. the plaintiff ought to have been advised that there were poor prospects of implying the ‘condition precedent’ (that was ultimately alleged) into the option agreement;
  1. there was no basis to allege fraud;
  1. there was no basis to think that the defendants were acting in trade or commerce (so a claim for misleading and deceptive conduct was not clearly open);
  1. the plaintiff was, plainly, in breach of its obligations to complete works and provide information about its works (the subject of the counterclaim).”
  1. [22]
    I accept these submissions in relation to the plaintiff’s prospects of success.  As I have already identified, this proceeding by the plaintiff was doomed to failure from the outset. Objective, robust and well-grounded legal advice could (and should) have identified for the plaintiff that its prospects of success in litigation were poor to non-existent, and the plaintiff should have been advised to accept the 2018 offer.
  2. [23]
    Although the 2018 offer did not specifically identify that an indemnity costs application would be made if it were not accepted, it did specifically identify that it was made pursuant to the principles in Calderbank v Calderbank,[21] and the obvious purpose of such an offer was to support an application for indemnity costs.
  3. [24]
    I have no hesitation in concluding that it was imprudent and/or unreasonable for the plaintiff not to accept the 2018 offer.
  4. [25]
    It follows from my conclusions in respect of the 2018 offer, that it was equally imprudent and unreasonable for the plaintiff not to accept either the 2019 Rules offer or the 2023 offer. 
  5. [26]
    I therefore conclude that this is a matter in which the defendants, who were wholly successful, were entitled to costs on an indemnity basis for the entire proceeding, including reserved costs.

Non-party costs orders

  1. [27]
    The defendants have helpfully outlined the applicable principles in respect of non-party costs orders as summarised by Williams J in Trouton v Trouton & Anor (No. 3) [2024] QSC 54, [16]-[39]:
  1. “47.
    The court has power under s. 15 of the Civil Proceedings Act 2011 (Qld) to make costs orders against a non-party.[22]
  1. The procedure for determination of costs is a summary procedure.  While the general rule is that judicial findings in a trial are inadmissible against a stranger to the proceeding, a departure from the general rule can be justified ‘if the connection of the non-party with the original proceedings was so close that he will not suffer any injustice by allowing this exception to the general rule”.[23]
  1. The general rule is that costs orders are only made against a party to a proceeding.  Departure from the general rule should be treated with caution and should only be done when exceptional circumstances make such an order reasonable and just.[24]
  1. The classes of case justifying a costs order against a non-party are not closed but should not be expanded to such an extent as to undermine the general rule itself.  Six existing classes of case have been identified in the authorities in which non-party costs orders were made:[25]
  1. where a person has some management of the proceeding;
  1. where a person has maintained or financed the proceeding;
  1. [an irrelevant class limited to the conduct of solicitors];
  1. where the person’s wrongful conduct has caused the action (or sometimes described as the person who caused the action);
  1. an irrelevant class concerning parallel litigation;
  1. an irrelevant class concerning group litigation/test cases.

(the classes)

Three relevant criteria for the court to consider are:[26]

  1. whether the party to the litigation is insolvent or a person of straw;
  1. whether the non-party has played an active part in the conduct of the litigation;
  1. whether the non-party has an interest in the subject of the litigation;

(the criteria).

  1. Additional criteria for the court to consider stem from the identification by the NSW Court of Appeal having conducted a survey of cases in which non-costs have been made, that most orders tend to satisfy at least some, if not a majority of the following criteria[27]:
  1. the unsuccessful party to the proceedings was the moving party and not the defendant;
  1. the source of the funds for the litigation was the non-party or its principal;
  1. the conduct of the litigation was unreasonable or improper;
  1. the non-party, or its principal, had an interest (not necessarily financial) which was equal to or greater than that of the party or, if financial, was a substantial interest;  and
  1. the unsuccessful party was insolvent or could otherwise be described as a person of straw.

(the additional criteria)

  1. The additional criteria assist in consideration but are  secondary considerations for the criteria.  The criteria and classes are not to be implied inflexibly.  They are guides to circumstances which may meet the threshold for the exercise of the discretion.[28]
  1. Where there is a sufficient basis to be satisfied that a party would be unable to pay a costs order against it without recourse to funds from another source, the party can be categorised as a ‘person of straw’.[29]
  1. For the non-party to be a person who played an active part in the litigation, it is ‘not necessary to show that the non-party exclusively controlled the conduct of the proceedings.  It is enough to point to its role as one of the actors in the scene in important and critical respects’.[30]
  1. For a non-party to have an interest in the subject of the litigation they need not necessarily have direct interest in the litigation.  It may be sufficient if the non-party has an ‘agenda for motive’ in the litigation being pursued.[31]
  1. A relevant consideration as to whether it is in the interests of justice to exercise the discretion is whether the non-party was afforded an opportunity to protect itself during the litigation by being warned about the potential non-party costs application (although failure to warn is not automatically a disqualifying factor).[32]”
  1. [28]
    The plaintiff acknowledges the principles as outlined in Trouton v Trouton & Anor (No. 3) [2024] QSC 54, [16]-[39][33] and also refers to and relies on the decisions of Knight v FP Special Assets Ltd (1992) 174 CLR 178, 192-3;  SJG Developments Pty Ltd v NT Two Nominees Pty Ltd (in liq) [2020] QSC 104, [21]-[28];  Jones & Anor v Aussie Networks Pty Ltd & Ors [2019] QSC 111, [2]-[4];  Dwyer v Nel [2021] QCA 165, [66], [85]-[100];  FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340, [2010].
  2. [29]
    The plaintiff identifies the following helpful passage[34] from Knight v FP Special Assets Ltd (1992) 174 CLR 178, 192-3:

“The prima facie general principle is that an order for costs is only made against a party to the litigation.  As our discussion of the earlier authorities indicates, there are, however, a variety of circumstances in which considerations of justice may, in accordance with general principles relating to awards of costs, support an order for costs against a non-party.  Thus, for example, there are several long-established categories of case in which equity recognised that it may be appropriate for such an order to be made. 

For our part, we consider it appropriate for such an order to be made. 

For our part we consider it appropriate to recognise a general category of case in which an order for costs should be made against a non-party and which would encompass the case of a receiver of a company who was not a party to the litigation.  That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation.  Where the circumstances of a case fall within that category, an order for costs should be made against non-party if the interests of justice require that it be made.”

Plaintiff a company of straw

  1. [30]
    The affidavit of Adam Hamrey deposes to conducting searches which indicate that the plaintiff has ten issued shares with a total value of $10 owned by Mitchell McIlwain;[35] operates from Unit 4, 37 Garfield Terrace, Surfers Paradise as its principal place of business;[36] that address is a residential property owned by Graeme McIlwain and Annette McIlwain;[37] and that it owns no real property.[38]
  2. [31]
    Further, the plaintiff has, despite specific requests by the defendants, refused to provide any information as to its financial position.[39]
  3. [32]
    The defendants further identify that in an exchange between solicitors in late 2019 and early 2020 in respect of a potential application for security for costs, during which the plaintiff was asked for a copy of its balance sheet and other financial documents, the plaintiff did not provide any of the requested financial documents but advised that non-party Mitchell McIlwain (director of the plaintiff) undertook to step out of the corporate veil of the plaintiff with respect to any costs orders.[40]
  4. [33]
    That position was restated by the plaintiff’s solicitor on 5 December 2023[41] and in that correspondence the plaintiff’s solicitor confirmed that the plaintiff owned no property but provided no further information about the company’s financial circumstances.
  5. [34]
    In the circumstances, given that correspondence, and the affidavits of Mitchell McIlwain[42], Graeme McIlwain[43] and Anthony Stolar[44], there is no information on which it could be concluded that the plaintiff has any capacity to pay a costs order from its own funds.
  6. [35]
    Accordingly, I am satisfied that the plaintiff is a company of straw. I note that the plaintiff submits that given the plaintiff’s solicitor’s indication that Mitchell McIlwain undertook to step out of the corporate veil of the plaintiff with respect to any costs orders, that a conclusion that the plaintiff was a company of straw was irrelevant to the prospect of a non-party costs order.[45]
  7. [36]
    It is clear that Mitchell McIlwain is the sole director and shareholder of the plaintiff, gave evidence on its behalf at trial, can reasonably be inferred to have played an active part in the litigation and held an interest in the subject of the litigation.[46]
  8. [37]
    Mitchell McIlwain conceded in cross-examination that the plaintiff was a partnership vehicle for himself and his father Graeme McIlwain;[47] and that he and Graeme McIlwain were funding the litigation.[48]  Further, as identified above, Mitchell McIlwain accepts joint liability for any costs order against the plaintiff.  However, Mitchell McIlwain has refused to provide any information as to his own financial circumstances[49] and the defendants have no other information as to Mitchell McIlwain’s financial position.[50]
  9. [38]
    The remaining contested issue then is whether a non-party costs order should be made against Graeme McIlwain.  Critically, as the defendants identify, there are various indicia which indicate not only that Graeme McIlwain played an active part in the litigation but also had an interest in its subject matter.  Graeme McIlwain gave evidence that after Mitchell McIlwain saw the advertisement for the property on realestate.com and forwarded it to him, “we had a discussion and decided it might be worth pursuing”[51] and “we decided that we would make an offer for the site which he then submitted”.[52]  Graeme McIlwain paid the initial option fee[53] ($100), and I conclude that this modest initial payment and the following matters demonstrated a clear intention by Graeme McIlwain to be practically involved from the outset of the negotiations, including the settling of the handwritten agreement and the subsequent written agreement.  Further, Graeme McIlwain and Mitchell McIlwain jointly populated the table of development costs contained in the SOC;[54] both gave instructions to the plaintiff’s lawyers in that respect;[55] Graeme McIlwain and Mitchell McIlwain jointly funded the litigation;[56] and Graeme McIlwain and Mitchell McIlwain were effectively running the project in partnership through the plaintiff.[57]
  10. [39]
    Further information from Adam Hamrey identifies the involvement of Graeme McIlwain in the day to day conduct of the litigation, including that disclosure documents recorded on their face Graeme McIlwain’s involvement in the formation and performance of the option agreement and communication with potential witnesses, including Mr Francis, Mr Edwards and Mr Worrell;  many of the allegations made by the plaintiff were premised upon alleged facts, matters or circumstances which involved Graeme McIlwain;  Graeme McIlwain attended the mediation of the matter in August 2023 on behalf of the plaintiff;  Graeme McIlwain was copied into solicitor/client correspondence regarding the conduct of the litigation, including the mediation and listing the matter for trial;  and (critically) Graeme McIlwain remained present in the courtroom for the duration of the trial.[58]I note that in reaching my conclusions on the role of Graeme McIlwain in this matter, I have not relied in any way on the affidavit of the first defendant.[59]
  11. [40]
    I have no hesitation in concluding that Graeme McIlwain played an active part in the litigation and had an interest in the subject of the litigation.  Further, I accept that the fraudulent misrepresentation case rested on alleged conversation between Peter Edwards (architect for the Wesley Mission) and Graeme McIlwain. Mr Edwards gave evidence that he did not recall any such conversation[60] and was not challenged.  Clearly, Graeme McIlwain was the source of the information from which the fraud case, which was eventually abandoned, was pleaded.
  12. [41]
    I conclude, for the following reasons, that the non-party Graeme McIlwain should also be answerable, together with the plaintiff and Mitchell McIlwain, for the defendants’ costs,  namely:
    1. the plaintiff was the moving party to the litigation and is a corporation of straw;
    2. Graeme McIlwain played an important role in the commencement and conduct of the proceedings;  and
    3. Graeme McIlwain was involved from the initial decision to acquire the property; the entry into the option agreement (including paying for the initial “deposit” personally); the subsequent dispute and ultimate litigation; and his financial investment in funding the litigation, leading to an inevitable conclusion that he had an interest in the subject of the litigation.
  13. [42]
    As I have identified at length in the reasons, I consider that the conduct of the litigation was unreasonable.
  14. [43]
    It is clear that Mitchell McIlwain owns no real property[61] and he has not been prepared to otherwise depose to his personal financial circumstances. I conclude that it is likely that he too would be unable to pay a costs order from his own assets.
  15. [44]
    In those circumstances, I conclude that a non-costs order should be made against Graeme McIlwain.

Fixed Costs Order

  1. [45]
    The defendants submit that the court, if persuaded to make an indemnity costs order, should make an order which reflects 100 percent of all of the disbursements and 95 percent of the solicitors’ fees[62].
  2. [46]
    The affidavit of Adam Hamrey sworn 3 September 2024 attests to the relevant fees charged as of that date, including sundries and outlays (which includes counsel’s fees)[63] and estimates future costs to the end of the costs hearing at $7,700 inclusive of GST for counsel’s fees and $4,400 including GST for solicitors’ professional fees.[64]
  3. [47]
    As Mr Ivessa submits, it is a discretionary decision of this court to make a fixed costs order, appropriately discounting (if necessary), the actual fees incurred by the successful party, but he urges that a fixed costs order should be made to save the parties the further cost of an assessment.  This court has the power to fix costs[65].  Mr Fisher on behalf of the plaintiff submits that there is insufficient information in the affidavit of Adam Hamrey sworn 3 September 2024 in order to make a fixed costs order.
  4. [48]
    With respect, I consider, given the lengthy and troubled history of this litigation and the significant cost incurred to date by the defendants (and no doubt for the plaintiff), that it is appropriate to make a fixed costs order. I consider further that the affidavit provided by Adam Hamrey[66] does provide sufficient information on which to make a fixed order as to costs.  However, in the circumstances, I consider it more appropriate to discount the solicitors’ fees at a figure of 90 percent, for contingencies, make no allowance for sundries, and order the outlays (including counsel’s fees) be assessed at 100 percent.  On my calculations, 90 percent of the solicitors’ fees (inclusive of GST) is $122,229.60 and the outlays amount to $60,597.35, being a total of $182,826.95.  Those sums, where applicable, include the estimated future costs to the end of the costs hearing.
  5. [49]
    Accordingly, I make the following orders:
  1. I order that WOHB Pty Ltd, Mitchell Robert McIlwain and Graeme William McIlwain pay the defendants’ costs of the proceedings on an indemnity basis, fixed at $182,826.95.

Footnotes

[1]WOHB Pty Ltd v Williams & Anor [2024] QDC 94.

[2]Application filed 4 July 2024.

[3]Uniform Civil Procedure Rules (UCPR) rr 681 & 702.

[4]Affidavit of Anthony Stolar filed 10 July 2024, [4].

[5]Defendants’ submission on costs, [3]; Plaintiff’s costs submissions, [11].

[6]Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, 233.

[7]TB1312; TB1317.

[8]T2-26:30; T2-26:35; T2-26:40.

[9]T3 – 17:35.

[10]Plaintiff’s costs submissions 15 August 2024, [13].

[11]TB 150 and Mitchell McIlwain accepted in cross-examination that the change was deliberate.  T1-89:1; and see WOHB Pty Ltd v Williams & Anor [2024] QDC 94, [79].

[12]WOHB Pty Ltd v Williams & Anor [2024] QDC 94, [39].

[13]WOHB Pty Ltd v Williams & Anor [2024] QDC 94, [52]-[58].

[14]Affidavit of Adam Hamrey sworn 2 July 2024, Exhibit APH-1, p. 1.

[15]Affidavit of Adam Hamrey sworn 2 July 2024, Exhibit APH-1, p. 9.

[16]Affidavit of Adam Hamrey sworn 2 July 2024, Exhibit APH-1, p. 50.

[17]Kozak v Matthews & Anor [2007] QSC 204 per Helman J, followed by McMeekin J in Manly v The Public Trustee of Queensland (No. 2) [2008] QSC 47, [6].

[18]Defendants’ submissions on costs, [20] and J & D Rigging Pty Ltd v Agripower Australia Limited & Ors [2014] QCA 23, [5].

[19][2014] QCA 23, [6].

[20]Defendants’ submissions on costs, [25].

[21]Calderbank v Calderbank [1976] Fam 93.

[22]Trouton v Trouton & Anor (No. 3) [2024] QSC 54 per Williams J at [22]-[23].

[23]Trouton v Trouton & Anor (No. 3) [2024] QSC 54, per Williams J at [17] citing Symphony Group PLC v Hodgson [1994] QB 179 at 193.

[24]Trouton v Trouton & Anor (No. 3) [2024] QSC 54, per Williams J at [29] citing Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2009] 2 Qd R 356 at 368 per Martin J.

[25]Trouton v Trouton & Anor (No. 3) [2024] QSC 54, per Williams J at [30] citing Symphony Group PLC v Hodgson [1994] QB 179 at 191-192.

[26]Trouton v Trouton & Anor (No. 3) [2024] QSC 54, per Williams J at [25] citing Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 192-3 per Mason CJ and Deane J.

[27]Trouton v Trouton & Anor (No. 3) [2024] QSC 54, per Williams J at [25] citing FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340 at [2010] per Basten JA (Beazley & Giles JJA agreeing).

[28]Trouton v Trouton & Anor (No. 3) [2024] QSC 54, per Williams J at [33].

[29]Trouton v Trouton & Anor (No. 3) [2024] QSC 54, per Williams J at [37].

[30]Trouton v Trouton & Anor (No. 3) [2024] QSC 54, per Williams J at [39] citing Ipex ITG Pty Ltd (in liquidation) v Victoria [2014] VSCA 315, [42] per Neave JA, Santa Maria JA and Kyrou JA.

[31]Trouton v Trouton & Anor (No. 3) [2024] QSC 54, per Williams J at [132](g).

[32]Trouton v Trouton & Anor (No. 3) [2024] QSC 54, per Williams J at [115]-[116] citing Yates v Boland [2002] FCA 1895;  Gore (T/as Clayton Utz) v Justice Corporation [2002] FCA 354;  Kebaro Pty Ltd v Saunders [2003] FCAFC 5.

[33]Plaintiff’s costs submissions, [42].

[34]Plaintiff’s costs submissions, [44].

[35]Affidavit of Adam Hamrey sworn 2 July 2024, [11] & Exhibit APH-3.1.

[36]Affidavit of Adam Hamrey sworn 2 July 2024, [11] & Exhibit APH-3.1.

[37]Affidavit of Adam Hamrey sworn 2 July 2024, [23]-[25] & Exhibit APH-3.20.

[38]Affidavit of Adam Hamrey sworn 2 July 2024, [12]-[14].

[39]Affidavit of Adam Hamrey sworn 2 July 2024, Exhibit APH 1 pp 5, 16, 33, 34, 40, 41, 44, 46, 53, 57, 59.

[40]Affidavit of Adam Hamrey, Exhibit APH 1, pp 33, 34, 40.

[41]Affidavit of Adam Hamrey sworn 2 July 2024, Exhibit APH 1, p. 57.

[42]Sworn 10 July 2024.

[43]Sworn 10 July 2024.

[44]Sworn 10 July 2024.

[45]The Plaintiff’s costs submissions, [24]-[48].

[46]Defendants’ submissions on costs, [65].

[47]T1 – 97: 21.

[48]T1 – 102: 30.

[49]Affidavit of Adam Hamrey sworn 2 July 2024 [8](o) & Exhibit APH-1 p. 57.

[50]Affidavit of Adam Hamrey sworn 2 July 2024, [12]-[14].

[51]T2 – 5: 45.

[52]T2 – 6: 20.

[53]T2 – 8: 24-40.

[54]T2 - 14: 15.

[55]T2 – 14: 40.

[56]T2 – 15: 15.

[57]T2 – 15: 35.

[58]Affidavit of Adam Hamrey sworn 2 July 2024, [29] & [27].

[59]Affidavit of Justin Williams affirmed 3 July 2024.

[60]T2 – 26: 40.

[61]Affidavit of Adam Hamrey sworn 2 July 2024, [16]-[18].

[62]Costs transcript T1-27, ll 7-14.

[63]Affidavit of Adam Hamrey sworn 3 September 2024 Exhibit APH-5.

[64]Affidavit of Adam Hamrey sworn 3 September 2024, [15].

[65]UCPR r 687(2)(c).

[66]Sworn 3 September 2024.

Close

Editorial Notes

  • Published Case Name:

    WOHB Pty Ltd v Williams & Anor (No. 2)

  • Shortened Case Name:

    WOHB Pty Ltd v Williams (No. 2)

  • MNC:

    [2024] QDC 209

  • Court:

    QDC

  • Judge(s):

    Dearden DCJ

  • Date:

    13 Dec 2024

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Calderbank v Calderbank (1976) Fam 93
2 citations
Jump To
Cite 1 - (1976) Fam 93
Cite 2 - (1976) Fam 93
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 F.C.R 225
3 citations
Jump To
Cite 1 - (1993) 46 F.C.R 225
Cite 2 - (1993) 46 F.C.R 225
Cite 3 - (1993) 46 F.C.R 225
Dwyer v Nel [2021] QCA 165
2 citations
Jump To
Cite 1 - [2021] QCA 165
Cite 2 - [2021] QCA 165
FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340
3 citations
Jump To
Cite 1 - [2005] NSWCA 340
Cite 2 - [2005] NSWCA 340
Cite 3 - [2005] NSWCA 340
ITG Pty Ltd (in liq) (receivers appointed) v Victoria [2014] VSCA 315
1 citation
Jump To
Cite 1 - [2014] VSCA 315
J & D Rigging Pty Ltd v Agripower Australia Limited [2014] QCA 23
3 citations
Jump To
Cite 1 - [2014] QCA 23
Cite 2 - [2014] QCA 23
Cite 3 - [2014] QCA 23
Jones v Aussie Networks Pty Ltd [2019] QSC 111
2 citations
Jump To
Cite 1 - [2019] QSC 111
Cite 2 - [2019] QSC 111
Kebaro Pty Ltd v Saunders (2003) FCAFC 5
1 citation
Jump To
Cite 1 - (2003) FCAFC 5
Knight v F. P. Special Assets Ltd (1992) 174 CLR 178
4 citations
Jump To
Cite 1 - (1992) 174 CLR 178
Cite 2 - (1992) 174 CLR 178
Cite 3 - (1992) 174 CLR 178
Cite 4 - (1992) 174 CLR 178
Kozak v Matthews [2007] QSC 204
2 citations
Jump To
Cite 1 - [2007] QSC 204
Cite 2 - [2007] QSC 204
Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721
1 citation
Jump To
Cite 1 - (1992) 27 NSWLR 721
Manly v The Public Trustee of Queensland (No. 2) [2008] QSC 47
2 citations
Jump To
Cite 1 - [2008] QSC 47
Cite 2 - [2008] QSC 47
Messiter v Hutchinson (1987) 10 NSWLR 525
1 citation
Jump To
Cite 1 - (1987) 10 NSWLR 525
SJG Developments Pty Ltd v NT Two Nominees Pty Ltd (in liq) [2020] QSC 104
2 citations
Jump To
Cite 1 - [2020] QSC 104
Cite 2 - [2020] QSC 104
Symphony Group PLC v Hodgson (1994) Q B 179
2 citations
Jump To
Cite 1 - (1994) Q B 179
Cite 2 - (1994) Q B 179
The Beach Retreat Pty Ltd v Mooloolaba Yacht Club Marina Ltd[2009] 2 Qd R 356; [2009] QSC 84
1 citation
Jump To
Cite 1 - [2009] 2 Qd R 356
Thors v Weekes (1989) 92 ALR 131
1 citation
Jump To
Cite 1 - (1989) 92 ALR 131
Trouton v Trouton [No 3] [2024] QSC 54
14 citations
Jump To
Cite 1 - [2024] QSC 54
Cite 2 - [2024] QSC 54
Cite 3 - [2024] QSC 54
Cite 4 - [2024] QSC 54
Cite 5 - [2024] QSC 54
Cite 6 - [2024] QSC 54
Cite 7 - [2024] QSC 54
Cite 8 - [2024] QSC 54
Cite 9 - [2024] QSC 54
Cite 10 - [2024] QSC 54
Cite 11 - [2024] QSC 54
Cite 12 - [2024] QSC 54
Cite 13 - [2024] QSC 54
Cite 14 - [2024] QSC 54
WOHB Pty Ltd v Williams [2024] QDC 94
5 citations
Jump To
Cite 1 - [2024] QDC 94
Cite 2 - [2024] QDC 94
Cite 3 - [2024] QDC 94
Cite 4 - [2024] QDC 94
Cite 5 - [2024] QDC 94

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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