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- Unreported Judgment
- Appeal Determined (QCA)
Highmist Pty Ltd v Tricare Australia Ltd QSC 118
SUPREME COURT OF QUEENSLAND
No 6356 of 2001
HIGHMIST PTY LTD
ACN 073 507 481
TRICARE AUSTRALIA LIMITED
ACN 009 657 345
HER HONOUR: On 1 April 2005 I delivered reasons for my conclusions that the subdivision effected in September 2001 was not in accordance with that contemplated by the contract, that the plaintiff is entitled to specific performance, and that the defendant is not entitled to rescission.
Yesterday, 20 April 2005, the parties made further submissions with respect to the form of the order, costs and a stay. The parties are agreed on the form of the order, so that the outstanding issues are costs and a stay.
I refer to the draft order which is at pages 9 to 12 of the exhibits to the affidavit of Richard John Bernard Ellem filed by leave on 20 April 2005. The order will be as per paragraphs 1 to 6 of that draft.
As to costs, the plaintiff seeks an order that the costs of and incidental to the action, save for those costs relating to the matters which have been adjourned, including reserved costs and the costs of and incidental to the hearing on 20 April 2005, be paid by the defendant to the plaintiff.
The defendant seeks orders:
(1) that the plaintiff pay the defendant's costs of and incidental to the proceedings up to and including 24 November 2004;
(2) that the plaintiff pay the defendant's costs of the trial in relation to the issue of access.
Costs normally follow the event. Rule 689(1) of the UCPR provides:
"689 General rule about costs
(1) Costs of the proceeding, including an application in a proceeding, are in the discretion of the Court but follow the event, unless the Court considers another order is more appropriate.
(2) Subrule (1) applies unless these rules otherwise provide."
Counsel for the defendant pointed out that the plaintiff's Statement of Claim has at all times included an allegation that it was an implied condition of the contract that it would have access to the main thoroughfare (paragraph 12), and submitted that until its solicitors wrote to the solicitors for the defendant on 24 November 2004 identifying with greater particularity the orders sought, its claim for specific performance was a claim for specific performance of a contract which included such an implied term.
Counsel for the plaintiff pointed out that in the prayer for relief the plaintiff's claim had always been simply for specific performance of the contract, in particular the subdivision of the land in accordance with the plan attached to the contract (with no reference to an implied right of access over the thoroughfare) and that there had never been any relief or remedy in respect of access claimed in the prayer for relief. But over the years there were times when the plaintiff claimed access rights of some kind in correspondence, and at trial the access issue was argued in defence of the claim for rescission. Strictly, the plaintiff's claim was never one for specific performance with access, and I am unpersuaded that there is good reason for depriving it of its costs up to 24 November 2004, let alone for ordering it to pay the defendant's costs up to that date.
It is true that the issue of access took a substantial portion of the trial and subsequent written submissions. It was a critical issue on the defendant's rescission claim, a claim on which the defendant failed. It may be that the defendant's counsel failed to appreciate where the issue fitted into the scheme of the arguments to be advanced on behalf of the plaintiff until the second day of the trial.
Be that as it may, the defendant has not demonstrated good reason why the Court should order the plaintiff to pay the defendant's costs of the trial in relation to the issue of access.
So the order for costs will be that the defendant pay the plaintiff's costs of and incidental to the proceeding, save for those costs which relate to the matters which have been adjourned, including reserved costs and the costs of and incidental to the further hearing on 20 and 21 April 2005.
The defendant intends to prosecute an appeal, and seeks a stay of the order requiring completion of the contract pending resolution of the appeal. It proffers undertakings:
(1) to prosecute such an appeal expeditiously; and
(2) not to sell or further encumber lots 20 and 21 on SP 144932 until the final determination of its appeal by the Court of Appeal.
Its counsel submits that it would be appropriate to grant a stay; indeed that a successful appeal would be rendered nugatory if a stay were not granted.
The plaintiff opposes a stay being granted at this stage. The contract was made as long ago as April 1996. The defendant has already run three unsuccessful appeals to the Court of Appeal - two in relation to its proceedings in the Planning and Environment Court, and one involving the plaintiff (against the order of Dowsett J). If a stay were granted, the reconfiguration process would not commence until after the determination of the appeal. Further delay would expose the plaintiff to a volatile market and the risk of rising interest rates.
Counsel for the plaintiff proposed that the application for a stay be adjourned to be brought on (if the defendant so desired) immediately before lodging the plans for reconfiguration of the new lot at the Land Titles Office. He proffered an undertaking that in the event the defendant is ultimately successful in having the order for specific performance set aside, the plaintiff will meet costs incurred by the defendant in performing the order up to the time of the lodgment of the plans for reconfiguration of the new lot at the Land Titles Office. He clarified that by "ultimately successful" he meant "in the High Court if needs be".
In my view, the proposal put forward by counsel for the plaintiff would fairly and adequately protect the positions of both parties pending the exhaustion of appeal rights.
Accordingly, upon the undertaking of the plaintiff to meet costs incurred by the defendant in performing the order for specific performance up to the time of the lodgment of the plans for reconfiguration of the new lot at the Land Titles Office in the event that the defendant is ultimately successful in having the order for specific performance set aside, I order that the defendant's application for a stay be adjourned to a date to be fixed, to be brought on (if the defendant so desires) immediately before plans for reconfiguration of the new lot are lodged at the Land Titles Office.
- Published Case Name:
Highmist Pty Ltd v Tricare Australia Ltd
- Shortened Case Name:
Highmist Pty Ltd v Tricare Australia Ltd
 QSC 118
21 Apr 2005