Mayfair Property Holdings Pty Ltd v Southland Packers Pty Ltd (No 3)
[2016] QSC 150
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- Unreported Judgment
- Mayfair Property Holdings Pty Ltd v Southland Packers Pty Ltd (No 3)[2016] QSC 150
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Mayfair Property Holdings Pty Ltd v Southland Packers Pty Ltd (No 3)[2016] QSC 150
Mayfair Property Holdings Pty Ltd v Southland Packers Pty Ltd (No 3)[2016] QSC 150
SUPREME COURT OF QUEENSLAND
CITATION: | Mayfair Property Holdings Pty Ltd v Southland Packers Pty Ltd (No 3) [2016] QSC 150 |
PARTIES: | MAYFAIR PROPERTY HOLDINGS PTY LTD (plaintiff) v SOUTHLAND PACKERS PTY LTD (defendant) |
FILE NO/S: | SC No 9813 of 2014 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
DELIVERED ON: | 22 July 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
JUDGE: | Bond J |
ORDER: | The order of the Court is that the defendant pay the plaintiff’s costs of the application filed 31 March 2016. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT Australian Securities and Investments Commission v Cassimatis (No 7) [2016] FCA 624 Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 90 ALJR 270; [2015] HCA 53 Fletcher v Fortress Credit Corporation (Australia) II Pty Ltd [2015] QSC 51 Mayfair Property Holdings Pty Ltd v Southland Packers Pty Ltd (No 2) [2016] QSC 145 |
COUNSEL: | A M Pomerenke QC, with P J McCafferty, for the plaintiff D A Kelly QC, with D M Turner, for the defendant |
SOLICITORS: | Russells Lawyers for the plaintiff McCullough Robertson for the defendant |
- My judgement in Mayfair Property Holdings Pty Ltd v Southland Packers Pty Ltd (No 2) [2016] QSC 145 dealt with the defendant’s application for leave to amend its defence and to file a counterclaim against the plaintiff and three proposed new parties.
- I made the following orders:
- Upon the plaintiff’s undertaking to submit to a stay of any judgment which it might obtain against the defendant in this proceeding until the determination at trial of the defendant’s claims against the plaintiff in the separate proceeding referred to in the next order, the defendant’s application is refused.
- If, within the 7 days of the date of this order, the defendant files a claim and statement of claim substantially in the form of the proposed counterclaim which was exhibit “GJH-1” to the affidavit of Guy John Humble filed on 30 March 2016, then –
(i)the proceeding so commenced will be placed on the Commercial list; and
(ii)the proceeding will be listed for review before me on a date to be fixed after the defendants have been served.
- Subsequently I received written submissions from each party in relation to the costs order which I should make. I had directed that after so doing I would determine the question on the papers.
- For the reasons which follow, the defendant should pay the plaintiff’s costs of the defendant’s application.
- The defendant’s application failed. The general rule is that costs should follow the event. That rule should apply unless there is good reason demonstrated by the defendant.
- The cases which suggest that the party seeking an indulgence should pay the costs of the application for the indulgence (and an application for leave to amend should be so regarded, at least where opposition to it is not unreasonable) also support the application of the general rule: see Fletcher v Fortress Credit Corporation (Australia) II Pty Ltd [2015] QSC 51 at [7] per Applegarth J and Australian Securities and Investments Commission v Cassimatis (No 7) [2016] FCA 624 at [4] per Edelman J.
- The defendant submitted that there should be no order as to costs in respect of the application; or that an order ought be made that the parties’ costs be costs in the proceeding; or that if I was minded to award the plaintiff some of its costs I should make a proportional order in favour of the plaintiff.
- The defendant suggested the following arguments provide good reason for departing from the general rule:
- the application raised a number of issues for consideration rather than a single issue;
- some issues raised by the plaintiff and responded to by the defendant were decided adversely to the plaintiff;
- leave was refused on grounds including an undertaking not proffered by the plaintiff until during the course of argument; and
- the ultimate outcome – on the basis of the plaintiff’s undertaking – was not far removed from the outcome sought by the defendant by its application.
- I disagree.
- The first two arguments invite me to analyse the application on an issue-by-issue basis. That is not appropriate. On this application, there was properly to be regarded as essentially one issue, namely whether the defendant should have the leave it sought. There were a number of considerations which needed to be brought into account in relation to the determination of that issue. The plaintiff did not persuade me to find in its favour in relation to each of the considerations. But that fact is not a sufficient warrant to justify embarking on an issue-by-issue costs analysis. I would make about this case, the same observations which the High Court recently made about a similar submission, in Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 90 ALJR 270 at 271; [2015] HCA 53 at [6] (citation omitted):
… the preferable approach in this case is the one usually taken, that costs should follow the outcome … . This is not a case where it may be said that the event of success is contestable, by reference to how separate issues have been determined. There are no special circumstances to warrant a departure from the general rule, and good reasons not to encourage applications regarding costs on an issue-by-issue basis, involving apportionments based on degrees of difficulty of issues, time taken to argue them and the like. …
- The third argument raises the significance of the fact that I accepted an undertaking which was proffered by the plaintiff during the course of argument. It is true that I did so. I thought that undertaking substantially defused the prejudice to the defendant of refusing its application. That was a significant but not necessarily a determinative consideration affecting the exercise of my discretion. But that is no reason to deny the operation of the general rule. After the undertaking was offered, the defendant still pursued its application. It did so because it wanted to obtain the leave which it sought, which was an outcome I rejected. Again, I see no reason to displace the general rule in this regard.
- The final argument involves an evaluation of the significance of the actual outcome which I do not accept. The defendant failing to achieve the outcome which it sought. The plaintiff’s resistance to the application was reasonable and, it turned out, successful. Again, I see no reason to displace the general rule.
- I order that the defendant pay the plaintiff’s costs of the application filed 31 March 2016.