Hannover International Ltd v Robson
[2011] QSC 301
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Hannover International Ltd v Robson[2011] QSC 301
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Hannover International Ltd v Robson[2011] QSC 301
Hannover International Ltd v Robson[2011] QSC 301
SUPREME COURT OF QUEENSLAND
CITATION: | Hannover International Ltd v Robson; Mine & Quarry Equipment International Ltd v Robson [2011] QSC 301 |
PARTIES: | HANNOVER INTERNATIONAL LIMITED v CHARLES WILLIAM ROBSON and MINE & QUARRY EQUIPMENT INTERNATIONAL LTD ARBN 079 139 683 v CHARLES WILLIAM ROBSON |
FILE NO/S: | BS 7342 of 2000; BS 8937 of 2000 |
DIVISION: | Trial Division |
PROCEEDING: | Claims |
ORIGINATING COURT: | Supreme Court of Queensland |
DELIVERED ON: | 5 October 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Written submissions |
JUDGE: | McMurdo J |
ORDER: |
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CATCHWORDS: | PROCEDURE – COSTS – GENERAL RULE-COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY – where there was judgment for the defendant – where funds are held as security for the defendant’s costs – where the plaintiffs sought no order as to costs – where the defendant sought his costs from the plaintiffs – whether costs should follow the event – whether funds held as security should be released to the defendant PROCEDURE – COSTS – GENERAL RULE-COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – THIRD PARTIES – where the defendant also sought his costs from a non-party – whether the non-party should be ordered to pay the defendant’s costs Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation (2001) 179 ALR 406, cited Robson v Robson [2011] QSC 234, cited |
COUNSEL: | D de Jersey for the plaintiffs A Morris QC with J Peden for the defendant |
SOLICITORS: | Flower and Hart for the plaintiffs Russell & Company Solicitors for the defendant |
- This judgment concerns the costs of these two proceedings which I dismissed by my judgment pronounced on 12 August 2011.[1] At the same time I determined proceedings BS 10177 of 2004 in which the plaintiff was Gary Robson and the defendants were Bill and Sandra Robson. The costs of that proceeding are to be paid by those defendants pursuant to a consent order.
- These two claims, described in the principal judgment as the debt claims, were entirely unsuccessful. Each plaintiff sought to recover as the alleged assignee of (part of) debts said to exist from loans made to Bill Robson. In essence, the claims failed because no such loans were made and the documents which purported to record them were shams.
- The starting point is that the successful defendant would be expected to have his costs from the unsuccessful plaintiffs. However, two departures from that ordinary rule are suggested by the arguments. The plaintiffs submit that there should be no order as to costs of either of these proceedings, because of the defendant’s pressing a number of unmeritorious arguments and persisting with a counterclaim which he abandoned only in final submissions. The defendant submits that he should have his costs, not only from the corporate plaintiff, but from Gary Robson.
- The plaintiffs’ submission has some merit. In proceeding BS 8937/00 Bill Robson pleaded a number of things by way of set-off and he made a counterclaim in an amount in excess of $1.2 million. The Defence in that case was some 74 pages. Many of the defences pleaded, specifically those in paragraphs 42 through 52 and 87 through 102, were unsuccessful or were not ultimately pursued. The plaintiff should have the costs of that abandoned counterclaim and those paragraphs of the Defence which are relevant to it, which are paragraphs 48-52, 79-81 and 87-102. To avoid the potential for dispute as to the extent of the costs occasioned by those issues, it is preferable that I make some apportionment now, although that will be necessarily a broad approximation. The outcome should be that Bill Robson as the successful defendant should recover 75 percent of his costs in proceeding BS 8937 of 2000 and that the counterclaim be dismissed with no order as to costs.
- In each Defence there was also a claim for a set-off based upon an alleged gift by Gary Robson to Bill Robson of an entitlement to receive $20 million. That Defence was not established. But it took up little time at the trial. It does not warrant a departure from the ordinary rule.
- The defendant’s submission that Gary Robson be ordered to pay his costs also has some merit. He is not a party to either of these proceedings. The power to award costs against a non-party is one to be exercised sparingly.[2] However, a number of considerations combine to make these cases exceptional and to justify the order which is sought. Gary Robson is undoubtedly the sole instigator of these cases. It was his decision alone to pursue them and, it would appear, he was the likely beneficiary had the claims succeeded. According to my findings, he should have appreciated that the claims were unmeritorious, and that their evidentiary basis comprised sham documents. It is his fault that these cases were brought and litigated. In each proceeding it will be ordered that Gary Francis Robson pay the same costs as will be ordered against the plaintiff. It will be further ordered that Gary Francis Robson pay to the defendant any costs which the plaintiff in either case has previously been ordered to pay but which remain unpaid.
- A sum of $50,000 together with accretions is held by Hopgood Ganim as security for the defendant’s costs in these two proceedings. There have been costs orders previously and the defendant says that the consequence of those orders is that there is a net balance substantially in his favour. But I will hear the plaintiffs before making an order in relation to those funds.
- In proceeding BS 7342 of 2000 it will be ordered that:
- The plaintiff and Gary Francis Robson pay the defendant’s costs of and incidental to the proceeding, including any reserved costs;
- Gary Francis Robson pay to the defendant any costs which the plaintiff has previously been ordered to pay (but which are unpaid).
In proceeding BS 8937 of 2000 it will be ordered that:
- The plaintiff and Gary Francis Robson pay 75 percent of the defendant’s costs of and incidental to the proceeding, including any reserved costs;
- Gary Francis Robson pay to the defendant any costs which the plaintiff has previously been ordered to pay (but which are unpaid);
- The counterclaim be dismissed with no order as to costs.