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Ausipile Pty Ltd v Bothar Boring and Tunnelling (Australia) Pty Ltd[2021] QSC 122

Ausipile Pty Ltd v Bothar Boring and Tunnelling (Australia) Pty Ltd[2021] QSC 122

SUPREME COURT OF QUEENSLAND

CITATION:

Ausipile Pty Ltd v Bothar Boring and Tunnelling (Australia) Pty Ltd [2021] QSC 122

PARTIES:

AUSIPILE PTY LTD (ACN 101 402 322)

(applicant)

v

BOTHAR BORING AND TUNNELLING (AUSTRALIA) PTY LTD (ACN 622 309 264)

(respondent)

FILE NO/S:

SC No 8953 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application for Costs  

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

28 May 2021

DELIVERED AT:

Brisbane

HEARING DATES:

Heard on the papers

JUDGES:

Wilson J

ORDERS:

  1. The applicant pay 70% of the respondent’s costs on the standard basis until 9.15am on 12 October 2020.
  2. Thereafter, the applicant pay 70% of the respondent’s costs on an indemnity basis, to be agreed or assessed.

CATCHWORDS:

PROCEDURES – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – PARTIAL SUCCESS – where the respondent successfully opposed an application for judgment under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) – where the respondent succeeded on one of three alternative defences – where considerable time and resources were expended arguing about the two unsuccessful grounds – how costs should be apportioned

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS TO COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – UNREASONABLE REFUSAL OF OFFER – where the applicant rejected the respondent’s Calderbank offer – where the offer was open for five business days and was made five business days before the hearing – where the applicant rejected the offer two days before it expired – whether the applicant had a reasonable opportunity to consider the offer – whether costs should be awarded on an indemnity basis from the date of the offer 

Uniform Civil Procedure Rules 1999 (Qld) r 681, r 684

AGL Sales (Qld) Pty Ltd v Dawson Sales Pty Ltd (No 2) [2009] QSC 75, considered

BHP Coal Pty Ltd & Ors v O & K Orenstein & Koppel AG & Ors (No 2) [2009] QSC 64, considered

Calderbank v Calderbank [1975] 3 All ER 333, applied

Hanson & Anor v Goomboorian Transport Pty Ltd & Ors [2019] QCA 207, applied

Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298, cited

Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 3) [2003] 1 Qd R 26; [2001] QCA 191, cited

McDermott v Robinson Helicopter Company (No 2) [2015] 1 Qd R 295; [2014] QSC 213, cited

Woollahara Municipal Council v Secure Pearking Pty Ltd (No 2) [2015] NSWSC 452, applied

COUNSEL:

M H Hindman QC for the applicant

N Andreatidis QC and S G McCarthy for the respondent

SOLICITORS:

McInnes Wilson Lawyers for the applicant

Thomson Geer for the respondent

Introduction

  1. [1]
    The applicant, by originating application, sought inter alia an order pursuant to section 78(2)(a) of the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (“the Act”) for judgment against the respondent in the sum of $761,296.75.  On 5 March 2021, I dismissed this application.
  2. [2]
    The question of costs was adjourned to a date to be fixed.  I invited the parties to serve short written submissions on the question of costs and indicated that, if appropriate, I would deal with the question of costs on the papers unless either party requested a hearing. No party has requested a hearing.
  3. [3]
    The applicant seeks an order that each party bear its own costs.  In the alternative, the applicant seeks an order that costs follow the event.
  4. [4]
    The respondent submits that the appropriate order is that the applicant pay the respondent's costs of the proceeding on the standard basis until 9.15am on Monday 12 October 2020 and, thereafter, on an indemnity basis, to be agreed or assessed.

Background

  1. [5]
    On 3 October 2019, the applicant filed its outline of submissions, which set out its grounds for seeking an order pursuant to section 78(2)(a) of the Act.
  2. [6]
    On 14 October 2019, the respondent filed its outline of submissions, which set out two grounds of defence. The respondent alleged that the applicant had:
    1. (a)
      engaged in misleading and deceptive conduct (“ground one”); and
    2. (b)
      failed to issue a valid warning notice to the respondent in accordance with section 99(2) of the Act prior to commencing the proceedings (“ground two”).
  1. [7]
    On 16 October 2019, Justice Lyons made consent orders for the filing of submissions and materials by the parties.
  2. [8]
    On 28 October 2019, the applicant filed its outline of submissions in reply, which responded to the respondent’s two grounds.
  3. [9]
    On 5 December 2019, the respondent filed a further outline of submissions raising a new ground of defence; that the payment claim comprised two separate contracts and was therefore not a valid payment claim under the Act (“ground three”).  These submissions were not provided for in the orders made by Lyons J.
  4. [10]
    On Monday, 12 October 2020, the respondent made an offer (“the offer”) to settle the proceeding pursuant to the principles enunciated in Calderbank v Calderbank (“Calderbank”).[1]  The offer provided:

Matters for consideration

To assist with your client's consideration of this offer, we note (in addition to the reasons set out in the Previous Offer) that your client's originating application is doomed to fail as the payment claim the subject of the Proceeding comprises of work under two contracts and is therefore not a valid payment claim under the Building Industry Fairness (Security of Payment) Act 2017 (Qld).

Offer

Despite our client's absolute confidence in its defence, given the significant additional legal costs and inconvenience involved in the Proceeding continuing to hearing, we are instructed that our client is willing to extend the following offer on a purely commercial and without admissions basis in an attempt to settle the Proceeding.

Our client is prepared to resolve the Proceeding with your client on the following basis:

  1. (a)
    your client's originating application be dismissed;
  2. (b)
    each party bears its own costs of the Proceeding; and
  3. (c)
    the above is recorded in a deed of settlement on terms acceptable to our client.

This is open for acceptance by your client until 10:00am on Monday, 19 October 2020.”

  1. [11]
    I note that the offer specifically dealt with the issues raised by the respondent in relation to ground three.
  2. [12]
    On 16 October 2020 at 5.52pm (two days before the offer was due to expire), the applicant expressly and unequivocally rejected the offer, stating:

“We refer to your letter dated 12 October 2020 marked “Without prejudice save as to costs”.

Our client rejects the offer set out in your letter.”

  1. [13]
    The hearing occurred on 19 and 20 October 2020.
  1. [14]
    The application was dismissed on 5 March 2021.  The respondent was successful in its defences in ground three but failed on its defences in grounds one and two.

Relevant legal principles

  1. [15]
    The general rule for costs is contained in rule 681 of the Uniform Civil Procedure Rules 1999 (Qld) (“the UCPR”), which provides:

681 General rule about costs

  1. (1)
    Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.
  1. (2)
    Subrule (1) applies unless these rules provide otherwise.”
  1. [16]
    The general rule that a successful party in litigation is entitled to an order of costs in its favour is grounded in reasons of fairness and policy, and should only be departed from where the other party can point to “some good reason”.  There must be “special” or “exceptional” circumstances to depart from the general rule,[2] so that the award of costs gives effect to the following principle:

“[67] … The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant.  Costs are not awarded to punish an unsuccessful party.  The primary purpose of an award of costs is to indemnify the successful party.  If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did.  As between the parties, fairness dictates that the unsuccessful party bears the liability for the costs of the unsuccessful litigation.” [3]

  1. [17]
    In Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 3) (“Interchase”),[4] the Court of Appeal had to consider the effect of rule 681(1),[5] and McPherson JA noted:

“[84] … [Costs] follow the ‘event’ which, when read distributively, means the events or issues, if more than one, arising in the proceedings unless the court makes some other order that is considered ‘more appropriate’…”

  1. [18]
    In McDermott v Robinson Helicopter Company (No 2),[6] Peter Lyons J noted:

“[30].It appears to me to follow from the decision of the Court in Interchase and by reference to the language of rr 681 and 684, that, under the current rules, events in an action are to be identified by reference to individual issues or questions in the action, and the event is not simply the result or outcome of the action; and, at least by implication, that the predilection for making orders for costs by reference to success on individual events within the action remains. In that case, no ground for depriving the fourth defendant, successful in the action, of his costs, other than his failure on a number of issues, was identified. (citations omitted)”

  1. [19]
    Rule 684 of the UCPR provides:

684 Costs of question or part of proceeding

  1. (1)
    The court may make an order for costs in relation to a particular question in, or a particular part of, a proceeding.
  2. (2)
    For subrule (1), the court may declare what percentage of the costs of the proceeding is attributable to the question or part of the proceeding to which the order relates.”
  1. [20]
    In BHP Coal Pty Ltd & Ors v O & K Orenstein & Koppel AG & Ors (No 2),[7] Philip McMurdo J (as his Honour then was) referred to the application of rule 684: 

“[7]  ... The general rule remains that costs should follow the event and r 684 provides an exception. Necessarily the circumstances which would engage r 684 are exceptional circumstances, and the enquiry must be: what is it about the present case which warrants a departure from the general rule? That this remains the approach under r 681 and r 684 comes not only from the terms of the rules themselves but also from the recognised purposes for it…

[8]  Thus in Todrell Pty Ltd v Finch & Ors, Chesterman J approved this passage from the judgment of Einstein J in Mobile Innovations Ltd v Vodafone Pacific Ltd:

“Notwithstanding that the court has power to deprive a successful party of costs, or even order a successful party to pay costs, that is a course to be taken in unusual cases and with a degree of hesitancy.”

I adhere to the view I expressed in Australand Corporation (Qld) Pty Ltd v Johnson & Ors that ordinarily the fact that a successful plaintiff fails on particular issues does not mean that the plaintiff should be deprived of some of its costs, although it may be appropriate to award costs of a particular question or part of a proceeding where that matter is definable and severable and has occupied a significant part of the trial. (citations omitted)”

  1. [21]
    Justice Philip McMurdo explained the position of a plaintiff who was not successful in all aspects of a claim as follows:

“[20] … If plaintiffs were to be at risk of adverse costs consequences simply by unsuccessfully advancing arguable points, then in a great deal of litigation the orders for costs would be quite different and with many unjust outcomes.  The general rule as to costs following the event should not be departed from simply because a plaintiff’s alternative case for a higher award is not accepted…” [8]

  1. [22]
    The respondent was the successful party in this case, so the default position under rule 681 is that the applicant should pay the respondent’s costs.  The question arises in this case as to whether the Court should exercise its discretion to make another order.

Test for indemnity costs

  1. [23]
    This is a case where the respondent seeks indemnity costs.  The default rule is that costs are awarded on the standard basis.[9]  However, where there are special circumstances that justify it doing so, the Court may depart from this practice and make some other order, such as an order that costs be paid on an indemnity basis.[10]  The rationale for an indemnity costs order is that it serves the purpose of compensating a party more fully for costs incurred, in circumstances where Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the other to the expenditure of those costs.[11]
  1. [24]
    The making of an offer pursuant to the principles of Calderbank is one circumstance in which the Court may exercise its discretion to make an order different from the general rule that costs follow the event on the standard basis.[12]  In such a case, the party seeking costs on an indemnity basis must show that the other party acted unreasonably or imprudently in not accepting the offer made pursuant to the principles of Calderbank.[13]

Applicant’s submissions 

  1. [25]
    The applicant submits that they successfully opposed grounds one and two, and the respondent raised ground three at a relatively late stage in the proceeding and outside of the consent orders made by Lyons J.  In the circumstances, the applicant submits that it is reasonable that the respondent should bear some of the costs of litigating the defences on which it failed, namely grounds one and two. 
  2. [26]
    Further, the applicant submits that the payment claim that was the subject of this proceeding comprised the following:
    1. (a)
      an unpaid amount of $438,936.00 in relation to payment claim four;
    2. (b)
      an unpaid amount of $268,972.00 in relation to payment claim five; and
    3. (c)
      an additional amount for hire by the respondent for the applicant’s crawler crane.
  3. [27]
    The applicant submits that, during cross-examination at the hearing of this proceeding, the respondent’s project manager, Kieran O'Connor, admitted that the respondent was liable for the entire amount of payment claim four.  Payment claim four forms a substantial proportion of the amount claimed in the payment claim that was the subject of this proceeding, and remains due and payable by the respondent to the applicant.
  4. [28]
    In relation to its decision not to accept the respondent’s offer, the applicant submits that the time afforded to accept an offer is of crucial significance in the discretion to award costs.  Calderbank offers do not bite until the recipient had a reasonable opportunity to consider the compromise.[14]
  5. [29]
    The applicant submits that it was only allowed five business days to consider the respondent’s offer, and that this was not a reasonable opportunity.
  6. [30]
    The applicant also complains that the basis advanced by the respondent to accept its offer related to ground three of the defence, which was set out in the further unsolicited submissions filed outside of the orders made by Lyons J.
  7. [31]
    Further, the applicant submits that, at the time of receiving the offer, they had arguable grounds to oppose the defence raised in ground three based on case law in equivalent interstate jurisdictions.
  8. [32]
    Accordingly, the applicant submits that it should not be ordered to pay the respondent’s costs on an indemnity basis.

Respondent’s submissions

  1. [33]
    The respondent acknowledges that the first and second defences, which it failed to make out, took up a proportion of the proceeding.  However, it does not follow that it was unreasonable for the respondent to have advanced those defences.
  2. [34]
    As mentioned by Bond J in Speets Investment Pty Ltd v Bencol Pty Ltd (No 2),[15] the general approach is that there must be special or exceptional circumstances to warrant depriving a successful party of its costs, and the mere fact that the successful party has been unsuccessful on some issues will ordinarily not be sufficient to do so.  They submit that there is nothing special or exceptional in this case to justify a departure from the general rule that costs follow the event.
  3. [35]
    Additionally, rule 684 of the UCPR should not be applied so liberally that its existence discourages a defendant from raising all appropriate grounds of defence out of fear that if it is unsuccessful on some grounds but successful overall, it may not recover all of its costs.[16]
  4. [36]
    In AGL Sales (Qld) Pty Ltd v Dawson Sales Pty Ltd (No 2) (“AGL Sales”),[17] it was argued before Philip McMurdo J that a plaintiff who had succeeded on its principal argument but failed on several other arguments advanced should have only a proportion of its costs.  His Honour Philip McMurdo J (as his Honour then was) rejected the argument raised by the defendant and held that the plaintiff should have all its costs, noting:

[18]   There is no suggestion here that the unsuccessful arguments were advanced in bad faith or that they were so irrelevant to the real issues as to warrant some special order as to costs.[18] 

  1. [37]
    In these circumstances, the respondent submits that it advanced three appropriate and reasonable grounds of defence, and no suggestion has been made by the applicant or the Court that the unsuccessful defences were advanced in bad faith or that they were so irrelevant to the real issues as to warrant some special order as to costs.  In light of this, the respondent submits that the applicant's submissions do not demonstrate a basis for departing from the general rule regarding costs and that I should follow the reasoning of Philip McMurdo J in AGL Sales.
  1. [38]
    The respondent submits that they obtained an order no less favourable than the offer and that it obtained this order on the grounds which it expressly articulated in this offer.  Accordingly, the respondent submits that it was unreasonable for the applicant not to accept the offer.
  2. [39]
    The respondent submits that the applicant should be ordered to pay its costs on the standard basis until 9.15am on Monday 12 October 2020 and, thereafter, on an indemnity basis, to be agreed or assessed.

Discussion

Apportionment of costs

  1. [40]
    The respondent was successful in defending the applicant’s originating application.
  2. [41]
    The applicant submits that there should be no order as to costs as Mr O'Connor (the respondent’s project manager) allegedly admitted that the respondent was liable for payment claim four.
  3. [42]
    Although the discretion in awarding costs is a wide one, it must be exercised judicially and not by reference to irrelevant considerations.[19]  In my view, the applicant's submission about Mr O'Connor and payment claim four is irrelevant to the exercise of the costs discretion in relation to this application.  Payment claim four was not the subject of the originating application.  The payment claim the subject of the originating application was payment claim six.
  4. [43]
    The general approach is that there must be special or exceptional circumstances to warrant depriving a successful party of its costs, and the mere fact that the successful party has been unsuccessful on some issues will ordinarily not be sufficient to do so.[20]
  5. [44]
    One circumstance in which it might be appropriate to award costs of a particular question or part of a proceeding is where that matter is definable and severable and has occupied a significant part of the proceeding.[21]  This is such a case.
  6. [45]
    In this case, the respondent raised three defences but was successful only on the third.  I note that this third defence was first advanced by the respondent some ten months prior to the hearing.  It could not be said that the third defence was raised relatively late in the proceedings. 
  7. [46]
    The respondent acknowledges that the first and second defences, which it failed to make out, took up a proportion of the proceeding.  Indeed, in my view, the litigation of the unsuccessful defences took up a substantial part of the proceedings. In this case there were three clear units of litigation.  In my view, the first two grounds raised by the defendant were discrete and severable from the third successful defence.
  8. [47]
    Where, as in this case, there are multiple issues which are determined in different directions as between the parties, a court might form an overall impression, having regard to the significance of the issues, the way they were determined and the amount of time and cost spent on them, and order one party to pay a proportion of another party’s costs as a way to reflect fairly the parties’ comparative success or failure in the outcome which was obtained.[22]
  9. [48]
    In my view, taking an impressionistic and pragmatic view as to what the real heads of controversy in the litigation were, it would be appropriate to award the respondent 70% of their costs.

Calderbank offer

  1. [49]
    The respondent seeks their costs on an indemnity basis on the grounds that it made an offer in accordance with the principles in Calderbank which stated that that applicant’s application was doomed to fail on the basis of ground three.  The respondent was successful precisely on this ground.
  2. [50]
    Accordingly, the respondent submits that it obtained an order no less favourable than its Calderbank offer on the grounds which it expressly articulated in its offer.
  3. [51]
    When considering a submission that the rejection of a Calderbank offer was unreasonable, the Court should have regard to the following considerations:
    1. (a)
      the stage of the proceeding at which the offer was received;
    2. (b)
      the time allowed to the offeree to consider the offer;
    3. (c)
      the extent of the compromise offered;
    4. (d)
      the offeree's prospects of success, assessed as at the date of the offer;
    5. (e)
      the clarity with which the terms of the offer were expressed; and
    6. (f)
      whether the offer foreshadowed an application for indemnity costs in the event of the offeree's rejecting it.[23]
  4. [52]
    The respondent submits that the Calderbank offer satisfied the above considerations, because:
    1. (a)
      The Calderbank offer was made 313 days after the respondent filed and served its further outline of submissions.
    2. (b)
      The offer was made at 9.15am on 12 October 2020 and was open for acceptance until 10:00am on 19 October 2020 (the first day of the hearing of the applicant's originating application).  That was a reasonable time to consider the offer.
    3. (c)
      The applicant expressly and unequivocally rejected the offer on 16 October 2020 at 5.52pm, which was two days before the offer was due to expire.  Accordingly, it is not open for the applicant to argue that it had insufficient time to consider the merits of the offer.
    4. (d)
      The respondent offered to make a genuine compromise, as it offered that each party bear its own costs.
    5. (e)
      The offer expressly and clearly articulated the respondent's position that the payment claim was invalid as it contained claims for work under two contracts, and the respondent would therefore succeed on ground three and the applicant's originating application was doomed to fail.
    6. (f)
      The terms of the offer were clear.
    7. (g)
      The offer expressly and clearly provided that, in the event that the offer was not accepted by the applicant and the respondent achieved a more favourable result, then the respondent would rely on the offer in recovering costs on an indemnity basis from the date of the offer.
  5. [53]
    I do not accept that the offer was incapable of being accepted as the applicant had insufficient time to consider the offer. In my view, a period of five business days, in the circumstances, was a sufficient time for the applicant to consider the offer.
  6. [54]
    Firstly, the applicant expressly and unequivocally rejected the offer two days before it expired.  If the applicant did not have sufficient time to consider the offer, one would have expected the applicant not to have rejected the offer, but rather to have either allowed the offer to expire or written to the respondent stating that the offer was not open for a sufficient time period.  The applicant's conduct in rejecting the offer two days prior to it expiring is inconsistent with its submissions that the offer was not capable of being accepted because there was not sufficient time to consider the offer.  The only reasonable inference is that it had considered the offer and made a decision to reject it. 
  7. [55]
    Secondly, the offer was made five business days before the hearing of the applicant's originating application.  At the time of receiving the offer, the applicant had been in possession of the respondent's further outline, which included submissions regarding ground three, for over ten months.  It can be assumed that, at this time, the applicant was ready for trial, with its solicitors and senior counsel fully prepared and readily available to provide advice.
  8. [56]
    In those circumstances, at the time the offer was made, the applicant can be taken to have understood the issues in the proceeding and to have been in a position to make its own assessment of the offer based on the submissions and evidence that had been filed.
  9. [57]
    Facts akin to these were considered in the Queensland Court of Appeal proceeding of Hanson & Anor v Goomboorian Transport Pty Ltd & Ors (“Hanson”).[24]  In Hanson, a defendant made an offer four business days prior to trial, which was left open for acceptance for three business days.  Notwithstanding the very short period of time afforded to consider the offer, Gotterson JA (with whom McMurdo JA and Douglas J agreed) held this did not render the offer incapable of being accepted as:

“[11] Here, the offer was made shortly before the commencement of the trial and at a time when the pre-trial steps had been completed.  At that point, the plaintiffs were in a position to well appreciate the issues in dispute and to assess realistically their prospects of success.  The time allowed for acceptance was not unreasonable.”[25]

  1. [58]
    Similarly, in the New South Wales Supreme Court case of Woollahra Municipal Council v Secure Parking Pty Ltd (No 2),[26] Ball J considered a similar argument regarding an offer that was made four days (of which only two were business days) before the hearing.  His Honour ultimately held that the offer was open for a reasonable period of time:

“[37] In the present case, the offer was made 4 days and 2 business days before the hearing was due to commence. The dispute was a commercial dispute between sophisticated litigants who were well represented. The parties had participated in a mediation which was unsuccessful and the defendant itself had made an offer of compromise on 4 December 2014. In light of those matters, it is to be expected that, at the time the plaintiff’s offer was received, the defendant would already have considered its position carefully and obtained legal advice on its prospects of success. At the time, the issues in the case had been clearly identified and the evidence including expert evidence had been served by the parties.

[38]  In those circumstances, little significance can be attached to the explanation the plaintiff gave in its offer for why the defendant should accept it. The defendant must have understood the issues in the case and been in a position to make its own assessment of the competing arguments in light of the pleadings and the evidence that had been served.”

  1. [59]
    In my view, in all of the circumstances, it was unreasonable for the applicant not to accept the offer.

Orders

  1. [60]
    Taking into account all of the relevant circumstances, including the fact that the respondent was successful on only one of three grounds and my finding that the applicant unreasonably rejected the respondent’s Calderbank offer, the appropriate orders are that:
    1. (a)
      the applicant pay 70% of the respondent’s costs on the standard basis until 9.15am on 12 October 2020; and
    2. (b)
      thereafter, the applicant pay 70% of the respondent’s costs on an indemnity basis, to be agreed or assessed.

Footnotes

[1][1975] 3 All ER 333.

[2]Oshlack v Richmond River Council (1998) 193 CLR 72 at [120], [134] and [143] per Kirby J.

[3]Oshlack v Richmond River Council (1998) 193 CLR 72 at [67] per McHugh J.

[4]Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 3) [2003] 1 Qd R 26.

[5]Then numbered rule 689(1).

[6][2015] 1 Qd R 295.

[7][2009] QSC 64.

[8]BHP Coal Pty Ltd & Ors v O & K Orenstein & Koppel AG & Ors (No 2) [2009] QSC 64 at [20].

[9]Uniform Civil Procedure Rules 1999 (Qld) r 702(1).

[10]Uniform Civil Procedure Rules 1999 (Qld) r 703(1); Spalla v St George Motor Finance Ltd (No 8) [2006] FCA 1537 at [15].

[11]Spalla v St George Motor Finance Ltd (No 8) [2006] FCA 1537 at [16], citing Hamod v New South Wales (2002) 188 ALR 659 at [20].

[12]State of Queensland v Hayes (No 2) [2013] QSC 80 at [8].

[13]J & D Rigging Pty Ltd v Agripower Australia Ltd [2014] QCA 23 at [5]-[6]; Wagner & Ors v Nine Network Australia & Ors (No 2) [2019] QSC 309 at [40].

[14]Young v Young [1998] 2 FLR 1131 at 1140.

[15][2021] QCA 39 at [16].

[16]Neumann Contractors Pty Ltd v Peet Beachton Syndicate Ltd (No 2) [2009] QSC 383 at [7].

[17][2009] QSC 75.

[18]AGL Sales (Qld) Pty Ltd v Dawson Sales Pty Ltd (No 2) [2009] QSC 75.

[19]Symbolic Resources Pty Ltd v Kingham & Ors (No 2) [2021] QSC 40 at [18].

[20]BHP Coal Pty Ltd & Ors v O & K Orenstein & Koppel AG & Ors (No 2) [2009] QSC 64 at [7].

[21]BHP Coal Pty Ltd & Ors v O & K Orenstein & Koppel AG & Ors (No 2) [2009] QSC 64 at [8]; Symbolic Resources Pty Ltd v Kingham & Ors (No 2) [2021] QSC 40 at [27].

[22]Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39 at [17] per Bond J.

[23]Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435 at [25], approved in J & D Rigging Pty Ltd v Agripower Australia Limited [2014] QCA 23 at [5]-[6].

[24][2019] QCA 207.

[25]Hanson & Anor v Goomboorian Transport Pty Ltd & Ors [2019] QCA 207.

[26][2015] NSWSC 452.

Close

Editorial Notes

  • Published Case Name:

    Ausipile Pty Ltd v Bothar Boring and Tunnelling (Australia) Pty Ltd

  • Shortened Case Name:

    Ausipile Pty Ltd v Bothar Boring and Tunnelling (Australia) Pty Ltd

  • MNC:

    [2021] QSC 122

  • Court:

    QSC

  • Judge(s):

    Wilson J

  • Date:

    28 May 2021

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2021] QSC 3905 Mar 2021-
Primary Judgment[2021] QSC 12228 May 2021-
Notice of Appeal FiledFile Number: CA3642/2130 Mar 2021-
Appeal Determined (QCA)[2021] QCA 22315 Oct 2021-
Appeal Determined (QCA)[2022] QCA 11524 Jun 2022-

Appeal Status

Appeal Determined (QCA)

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