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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
LM Investment Management Ltd (receivers and managers appointed)(in liquidation) v Drake & Ors  QSC 19
LM INVESTMENT MANAGEMENT LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) ACN 077 208 461 AS RESPONSIBLE ENTITY OF THE LM FIRST MORTGAGE INCOME FUND ARSN 089 343 288
PETER CHARLES DRAKE
LISA MAREE DARCY
EGHARD VAN DER HOVEN
FRANCENE MAREE MULDER
JOHN FRANCIS O’SULLIVAN
SIMON JEREMY TICKNER
LM INVESTMENT MANAGEMENT LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUUIDATION) ACN 077 208 461
KORDA MENTHA PTY LTD ACN 100 169 391 IN ITS
CAPACITY AS TRUSTEE OF THE LM MANAGED PERFORMANCE FUND
Application for costs
Supreme Court at Brisbane
28 February 2020
Written submission provided 29 November 2019
The order of the Court is that:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – where the seventh defendant applied (informally) for an order that the plaintiff pay the seventh defendant’s costs of the proceeding – where the seventh defendant contends that the costs were properly incurred in defending the proceeding – where the plaintiff made no submissions as to the costs of the seventh defendant – where the court ordered that the costs of the proceeding should follow the event.
Uniform Civil Procedure Rules 1999 (Qld), r 681
LM Investment Management Ltd (receiver appointed) (in liquidation) v Drake & Ors  QSC 281
Gadens for the plaintiff
Russells Law for the seventh defendant
- On 22 November 2019, the court gave judgment in the proceeding dismissing the plaintiff’s claim against the defendants. The trial had proceeded against the first to fourth and sixth defendants. It did not proceed against the fifth defendant because he was not served. It did not proceed against the seventh defendant either, because the claim against the seventh defendant was deleted from the statement of claim.
- As to the seventh defendant, LMIM by the liquidators was involved in the proceeding until 28 April 2016. On that date, the court ordered that the liquidators and the solicitors for the seventh defendant be excused from further appearances.
- Prior then, the seventh defendant had been involved in a number of steps, including filing a defence. However, by April 2016, it appeared that LMIM was not insured and the proceeding against it did not continue.
- On 29 November 2019, the seventh defendant applied (informally) for an order that the plaintiff pay the seventh defendant’s costs of the proceeding. By written submission, the seventh defendant contends that it remains a party to the proceeding and that it had, by the liquidators, properly incurred costs in defending the proceeding.
- The seventh defendant submits that in circumstances where the plaintiff’s claim was dismissed, including for reasons pleaded in the seventh defendant’s defence as appropriate, the plaintiff should be ordered to pay the seventh defendant’s costs.
- Following receipt of the seventh defendant’s application, the court enquired whether the plaintiff intended to make any submissions as to costs of the seventh defendant. The plaintiff replied that it did not.
- In my view, in those circumstances, r 681 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) applies. The costs of the proceeding should follow the event. No reason to make another order has been advanced by the seventh defendant or the plaintiff.
LM Investment Management Ltd (receiver appointed)(in liquidation) v Drake & Ors  QSC 281.
- Published Case Name:
LM Investment Management Ltd (receivers and managers appointed) (in liquidation) v Drake & Ors
- Shortened Case Name:
LM Investment Management Ltd v Drake (No 2)
 QSC 19
28 Feb 2020
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 281||22 Nov 2019||Plaintiff's claim for damages for contravention of s 601FD(1)(b) and (c) of the Corporations Act 2001 (Cth) (pursuant to s 1317H(1) of the Corporations Act 2001 (Cth)) dismissed: Jackson J|
|Primary Judgment|| QSC 19||28 Feb 2020||Costs judgment: Jackson J.|