EPAS Ltd v James[2007] QSC 155

SUPREME COURT OF QUEENSLAND

1. Wilson J: This was an application with respect to the 8th defendant’s defence. I have had my associate e-mail a copy of the reasons for judgment to the parties in advance but I will now formally publish them.^[1]
2. In each proceeding, S3543 of 2000 and S3544 of 2000, there are two applications, one filed on 9 February 2007 and the other filed on 2 April 2007. In the application filed on 9 February 2007, the plaintiff asked the Court to strike out paragraph 88(b)(iii) of the 8th defendant’s defence.
3. At that stage, the gains were particularised (inter alia) by reference to gains resulting from any other investment pursuant to section 30C of the Trusts Act. The plaintiff took the point that those were not proper particulars. This resulted in the amendment of the defence of the 8th defendant so that there were then two separate paragraphs – paragraph 88(b)(iii) invoking the general law, and paragraph 88(b)(iv) invoking section 30C of the Trusts Act. That change was effected in February.
4. There was then correspondence about particulars of the new paragraph 88(b)(iv). Dissatisfied with the 8th defendant’s response on 26 March 2007, the plaintiff filed a fresh application on 2 April 2007. In that fresh application, the plaintiff asked for orders:

1. striking out paragraph 88(b)(iii);
2. striking out paragraph 88(b)(iv); and
3. for particulars of paragraph 88(b)(iv).

5. Strictly, it was the second application which was heard by the Court. I have determined to make the following orders on the application filed on 2nd April 2007:

1. that the applications to strike out paragraphs 88(b)(iii) and 88(b)(iv) of the 8th defendant's defence be dismissed;

2. that the 8th defendant file and serve particulars of the losses and gains relied upon in paragraphs 88(b)(iii) and 88(b)(iv) on or before 6 July 2007.

6. The obligation to provide those limited particulars has never been disputed.
7. It is appropriate in all the circumstances that an order be made that the application filed on 9 February 2007 be dismissed.
8. That leaves the question of costs. The 8th defendant seeks its costs of both applications. The plaintiff submits that the costs of both applications should be costs in the cause or alternatively that the 8th defendant should pay the plaintiff's costs of the first application and that the costs of the second application should be costs in the cause.
9. Counsel for the plaintiff told the Court that it was not until the hearing that the 8th defendant gave an assurance that it would be asking the Court to exercise the discretion in section 30C of the Trusts Act only on the basis of facts already pleaded. However, given the undisputed obligation to plead matters which might take the other side by surprise, the 8th defendant would have been so restricted anyway. I do not think there is substance in this point.
10. The other point taken by counsel for the plaintiff was this. One ground of the first application was conceded by the 8th defendant in amending its defence to add paragraph 88(b)(iv). That is so, but the other grounds relied upon to support the application to strike out 88(b)(iii) were persisted in. I do not think that the plaintiff’s “success” on one ground in the context of its failure on the other grounds, which were the basis of both the first application and the second application, is sufficient reason to deny the 8th defendant its costs.
11. Accordingly, I am making the following costs orders.

1. On the application filed on 9 February 2007, that the applicant/plaintiff pay the respondent/8th defendant’s costs of and incidental to the application to be assessed on the standard basis.
2. On the application filed on 2nd April 2007, that the applicant/plaintiff pay the respondent/8th defendant’s costs of and incidental to the application to be assessed on the standard basis.

12. The same orders are made in each proceeding.