SUPREME COURT OF QUEENSLAND
CITATION: | Northern SEQ Distributor-Retailer Authority t/as Unitywater v Stockland North Lakes Development Pty Ltd & Anor (No 2) [2015] QSC 73 |
PARTIES: | (plaintiff) v (second defendant) |
FILE NO/S: | SC No 9111 of 2013 |
DIVISION: | Trial Division |
PROCEEDING: | Trial – Further Order |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 9 April 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
JUDGE: | Philip McMurdo J |
ORDER: |
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CATCHWORDS: | PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – where plaintiff was substantially successful but failed on a specific question in the proceedings – where the specific question on which the plaintiff failed was not a “subsidiary point” but had the practical consequence of determining whether a large sum was presently due and payable – whether costs otherwise recoverable by the plaintiffs should be reduced – whether a substantially successful party which fails on an issue should be deprived of some of its costs PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – CO-DEFENDANTS – plaintiff substantially successful but failed on a specific question in the proceedings – where the first defendant argued it should pay no more than 50 per cent of the plaintiff’s costs and 60 per cent of the second defendant’s costs – where the plaintiff was substantially successful and awarded 90 per cent of its costs – where the second defendant’s original pleading could not have materially affected the course of the litigation and was awarded its costs PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – where the plaintiff was substantially successful but failed on a specific question in the proceedings – question on which the plaintiff failed was not a “subsidiary point” but had the consequence of determining whether a large sum was presently due and payable – whether costs otherwise recoverable by the plaintiff should be reduced – whether a substantially successful party which fails on an issue should be deprived of some of its costs – where the first defendant submitted there should be no order as to costs in relation to the plaintiff’s interlocutory application – where commencement by application rather than by claim was not so unreasonable as to deprive the substantially successful plaintiff of its costs Australand Corporation (Qld) Pty Ltd v Johnson & Ors [2007] QSC 128, cited BHP Coal Pty Ltd & Ors v O & K Orenstein & Koppel AG & Ors (No 2) [2009] QSC 64, cited Northern SEQ Distributor-Retailer Authority t/as Unitywater v Stockland North Lakes Development Pty Ltd & Anor [2014] QSC 308, cited |
SOLICITORS: | Hopgood Ganim for the plaintiff Shand Taylor for the first defendant Moreton Bay Legal Services for the second defendant |
[1] This judgment concerns the costs of the proceedings which I determined last December.
[2] The plaintiff seeks an order that the first defendant pay its costs of the proceeding because it suggests, it was entirely successful. The defendant Council also seeks its costs from the first defendant. But the first defendant submits that it should pay no more than 50 per cent of the plaintiff’s costs and 60 per cent of the Council’s costs. The first defendant further submits that there should be no order as to costs in relation to the plaintiff’s interlocutory application of November 2013.
[3] The plaintiff argues that it succeeded on the two questions which were raised by its claim for relief, namely whether there was a cap on the credits available to the first defendant and whether those credits were transferable to another development. It also succeeded in resisting the first defendant’s estoppel case. The plaintiff acknowledges that it did not succeed on another question, which was whether the cap on the credits could be imposed during the course of the development instead of at its completion. But it says that this issue had little significance for the cost of the proceeding because it did not involve any oral evidence and was a “short point of construction which arose during the course of the hearing”.
[4] The Council submits that it enjoyed complete success in the proceeding and upon the basis of a case which, it suggests, was always pleaded by it. The Council, unlike the plaintiff, argued at the trial that the cap on the credits could not be imposed before the completion of the development.
[5] I accept that the plaintiff succeeded on the two questions which its claim for relief raised. However, the resolution of only those questions would not have resolved the entire dispute. The question of whether a cap on the credit could be applied during the course of the development could not be fairly described as a “subsidiary point”. Its practical relevance was whether a large sum of money had to be paid immediately by the first defendant to the plaintiff, as the plaintiff had demanded ahead of the commencement of this case. On 29 January 2013, the plaintiff wrote to the first defendant contending, amongst other things, that it was required to pay to the plaintiff an amount of $5,798,122.69 and on 11 March 2013, it issued an invoice for that amount, requiring payment by 12 April 2013. It is true that no money sum was sought by the plaintiff’s claim. But had the so-called subsidiary point not been decided by the principal judgment, the parties would have been left with an unresolved issue of whether a large sum was presently due and payable. This point should have been raised more clearly by the terms of the plaintiff’s claim.
[6] The Council’s case was not always as it ultimately argued and as I accepted in the principal judgment. Until the trial, the Council pleaded relevantly as follows:
“2.(a)Nothing in the agreement … prevented the Council or the plaintiff, at their discretion, allowing [sewage] transportation credits to be offset, on a temporary basis, against [sewage] treatment providing always that the principal developer … remained bound by its obligations under s 6.13 of the Agreement at the completion of the development …”
At the trial, the Council was allowed to amend to plead that:
(a)The Agreement … allowed [sewage] transportation credits to be offset, on a temporary basis, against [sewage] treatment and [sewage] transportation charges, providing always that the principal developer … remained bound by its obligations under s 6.13.1 of the Agreement at the completion of the development …”
That amendment effected a substantial change to the Council’s case. Under its previous case, the Council and in turn the plaintiff had a discretion as to whether to impose the cap during the development. Under the amended case, there was no such discretion.
[7] The estoppel case was bound to fail once the agreement was interpreted as it was by the principal judgment. That the case should fail in that event was properly conceded by the first defendant at the end of the trial. The estoppel case may not have been advanced had the plaintiff conceded that the cap could not be applied during the course of the development. And as I wrote in the principal judgment, had I accepted the plaintiff’s argument that the cap could be applied at each stage of the development, it could have been concluded that the parties acted towards each other in a way which was inconsistent with that interpretation.[1] The estoppel case involved a significant factual inquiry.
[8] The plaintiff submits that a successful plaintiff which fails on an issue should not be deprived of some of its costs.[2] As between the plaintiff and the first defendant, it must be said that the plaintiff has enjoyed substantial success. But the plaintiff did fail on a question which had the practical consequence of postponing by some years the payment of a large sum of money. For that reason and because that issue contributed to the litigation of the estoppel questions, some allowance should be made for its outcome.
[9] Having regard to those matters, I conclude that the first defendant should be ordered to pay 90 per cent of the plaintiff’s costs. The first defendant’s submission that it should pay no more than 50 per cent of the plaintiff’s costs does not realistically acknowledge the extent of the plaintiff’s success. After all the first defendant argued that there was no cap at all and that the credits were able to be used upon other developments.
[10] The Council can say that its case at the trial did correspond with the outcome. Further, the real protagonists were the plaintiff and the first defendant so that by its original pleading, the Council could not have materially affected the course of the litigation. I am persuaded that the Council should have the entirety of its costs from the first defendant.
[11] The first defendant argued that there should be no order for costs of what it describes as a summary judgment application. The plaintiff says that this is a misdescription of the relevant day in November 2013 when its originating application seeking declaratory relief was returnable in the Applications List. But that difference is immaterial. The real question is whether costs were unnecessarily wasted by the proceeding being commenced in that way instead of being commenced by a claim. In hindsight, it can be seen that the latter course should have been followed. But I am not persuaded to exclude these costs from the plaintiff’s costs to be recovered. Ultimately, the case turned upon the proper interpretation of the agreement and its commencement by an originating application was not so unreasonable as to deprive a substantially successful party of (90 per cent of) the costs of the matter coming before the court on that day.
[12] The orders will be:
1.The first defendant will pay 90 per cent of the plaintiff’s costs of the proceeding.
2.The first defendant will pay the second defendant’s costs of the proceeding.
