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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Hookey & Anor v Manthey & Ors (No 2)  QSC 156
SCOTT GREGORY HOOKEY
MARETTI AUSTRALIA PTY LTD
STEVEN CHARLES MANTHEY
SC MANTHEY PTY LTD
BS 7639 of 2018
Costs Decision after Application
Supreme Court of Queensland at Brisbane
5 June 2020
On the papers
The plaintiffs are to pay the costs of the first, second, fourth and fifth defendants, of and incidental to the application on the standard basis.
PROCEDURE – COSTS – RECOVERY OF COSTS – where the respondents were substantially successful – where the respondents abandoned their application for summary judgment on the morning of the hearing without prior notice to the plaintiffs – whether the plaintiffs should pay the whole of the respondents’ costs or whether costs should be apportioned
Uniform Civil Procedure Rules 1999 (Qld)
Aklia Holdings Pty Ltd v The Carter Group Pty Ltd (in liq) & Ors (No 2)  QSC 266, applied
G Coveney for the plaintiffs
N Derrington for the first, second, fourth and fifth defendants
Radcliffs for the plaintiffs
Holman Webb Lawyers for the first, second, fourth and fifth defendants
- On 21 May 2020, I delivered reasons in this application striking out certain paragraphs of the plaintiffs’ third further amended statement of claim (3FASOC), and granting the plaintiffs leave to re-plead.
- In my reasons I indicated, in effect, that I considered that the applicants (the first, second fourth and fifth defendants – known as the “Manthey Parties”) had been substantially successful and that, unless a submission was made to the contrary which I accepted, I would order the plaintiffs to pay the Manthey Parties’ costs.
- The plaintiffs have made a submission to the contrary.
- They submit that the Manthey Parties are entitled to only –
- (a)half of their costs incurred in respect of the amended application which was filed on 19 November 2019; and
- (b)none of their costs associated with their application filed 8 August 2019.
- The plaintiffs rely on the fact that the amended application sought summary judgment of paragraphs 50 – 52 of the 3FASOC as well as the striking out of those paragraphs, but that that aspect of the application was wholly abandoned on the morning of the hearing without prior notice to the plaintiffs.
- They rely on the fact that I did not strike out paragraph 50 of the 3FASOC and that I granted leave to re-plead paragraphs 51 and 52, although the Manthey Parties submitted that I ought not to grant such leave.
- The plaintiffs also complain that the amended application was served just two business days prior to the hearing date.
- In pressing for an order that they should have their costs of, and incidental to, the application on the standard basis, the Manthey Parties recited the following history:
- On 8 August 2019, the Manthey Parties filed an application seeking to strike out significant parts of the second further amended statement of claim. The application was listed for 24 October 2019;
- On 21 October 2019, the plaintiffs spoke to the Manthey Parties, seeking an adjournment of the application because they had received advice from counsel that the pleading should be amended. By consent, Bradley J adjourned the application to 21 November 2019 and required the proposed amendments to be made to the statement of claim by 4 pm on 4 November 2019;
- On 13 November 2019, a substantially amended 3FASOC was filed;
- The 3FASOC deleted from the pleading almost all of the paragraphs that were the subject of the original application, leaving only intact the loss of opportunity claim. Also, the 3FASOC reintroduced a previously deleted claim against Mrs Manthey;
- An amended application was filed on 19 November 2019 – limited to an attack on those two parts of the pleading only – that is, the loss of opportunity claim and the claim against Mrs Manthey.
- Thus, the Manthey Parties submit that their application resulted in the abandonment of almost all of the impugned allegations in the second further amended statement of claim.
- To the extent that a handful of impugned allegations were not abandoned, they had been substantially successful in their attack upon them.
- Although they did not proceed with their application for summary judgment, the issues relevant to it were the issues relevant to the application for strike out.
- The Manthey Parties further submit that there is nothing in the submission that the amendment to the application did not occur at least eight days prior to the hearing of the application. The 3FASOC itself was not filed until eight days prior to the hearing date.
- They submit that there is no reason for them to be deprived of their earlier costs.
- In reaching my decision on costs, I have taken into account the principles relevant to the exercise of my discretion as summarised by Bond J in Aklia Holdings Pty Ltd v The Carter Group Pty Ltd (in liq) & Ors (No 2)  QSC 266 at  and in particular at (d).
- The Manthey Parties’ written submissions on the application did not include written submissions in support of their application for summary judgment.
- The application for summary judgement was disposed of quickly in the plaintiffs’ written submissions. The plaintiffs relied upon the fact that the Uniform Civil Procedure Rules 1999 (Qld) contemplate that an application for summary judgment will be made after a Notice of Intention to Defend, attaching the defence, has been filed. The plaintiffs submitted that the application for summary judgment ought to be dismissed because no defence had been filed and there was therefore “simply no evidence [upon] which summary judgment could be granted”.
- I infer that the plaintiffs considered the Manthey Parties’ affidavit material for the purposes of their response to the summary judgment application from their submission that “[it was] incorrect to say that matters of facts [sic] are sufficiently raised by the affidavit material”. However, the affidavits which were relevant to the summary judgment application were the same as the affidavits relevant to the application for strike out. The plaintiffs were not, in that sense, burdened by an unnecessary consideration of evidence.
- I accept the argument of the Manthey Parties that the issues relevant to the strike out application were not conceptually distinct from the issues relevant to the application for summary judgment which was not pursued.
- Also, I consider it appropriate to treat the argument about the strike out of paragraphs 50 – 52 as an argument covering just one issue, namely whether the claim for a loss of commercial opportunity was properly pleaded. The Manthey Parties were substantially successful in their complaints about the defects of the way in which that issue was pleaded.
- Even if it is accurate to consider the plaintiffs to have been “successful” on the withdrawn summary judgment application, I consider that the Manthey Parties have been substantially successful in their application, viewed as a whole as an application concerning the issue of the pleading of the loss of opportunity claim and the issue of the pleading of Mrs Manthey’s knowledge.
- Accordingly, I order that the plaintiffs pay the Manthey Parties’ costs of, and incidental to, the application on the standard basis.
- Published Case Name:
Hookey & Anor v Manthey & Ors (No 2)
- Shortened Case Name:
Hookey v Manthey (No 2)
 QSC 156
05 Jun 2020