LKB Group Pty Ltd v Niclin Constructions Pty Ltd
[2021] QSC 160
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- Unreported Judgment
- LKB Group Pty Ltd v Niclin Constructions Pty Ltd[2021] QSC 160
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LKB Group Pty Ltd v Niclin Constructions Pty Ltd[2021] QSC 160
LKB Group Pty Ltd v Niclin Constructions Pty Ltd[2021] QSC 160
SUPREME COURT OF QUEENSLAND
CITATION: | LKB Group Pty Ltd v Niclin Constructions Pty Ltd & Ors [2021] QSC 160 |
PARTIES: | LKB Group Pty Ltd ACN 142 841 423 (As Trustee For The P J Mienert Family Trust) (Applicant) v Niclin Constructions Pty Ltd ACN 614 074 065 (First Respondent) AND The Adjudications Registrar; Queensland Building and Construction Commission (Second Respondent) AND Peter Thomas Sarlos (Registered Adjudicator Number J1158721) (Third Respondent) |
FILE NO/S: | BS 2612 of 2021 |
DIVISION: | Trial Division |
PROCEEDING: | Application for Costs |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 25 June 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Written submissions filed 17 May 2021 |
JUDGE: | Jackson J |
ORDER: | The order of the court is that:
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – GENERALLY – where the applicant succeeded on one of the three grounds considered by the court – where no arguable basis emerged for the first respondent to have resisted the part of the proceeding on which the applicant succeeded – whether the results on the different grounds considered by the court should be separate events for the purposes of costs – whether the applicant’s success on the hearing of the application was greater than the first respondent’s success Civil Proceedings Act 2011 (Qld), s 15 Uniform Civil Procedure Rules 1999 (Qld), r 681(1), r 684 |
COUNSEL: | L Campbell for the applicant R Schulte for the first respondent |
SOLICITORS: | Cornwalls for the applicant Batch Mewing Lawyers for the first respondent |
Jackson J:
- [1]On 11 May 2021 the court declared that the amended adjudicated amount was invalid to the extent of $164,932.04 but otherwise remained binding on the parties to the proceeding.[1] Following that, the parties made written submissions as to costs.
- [2]The applicant submits that the first respondent should be ordered to pay the applicant’s costs of the proceeding or 50 per cent of those costs. The first respondent submits that the applicant should be ordered to pay 50 per cent of the first respondent’s costs or that each party should bear its own costs.
- [3]As the reasons for decision on the application show, the applicant succeeded on one of three grounds considered, namely that the amended adjudicated amount included allowances for items that were not claimed as part of the first respondent’s progress claim under consideration, because those amounts had been claimed, approved and paid under a previous progress claim or claims. On the other hand, the applicant was unsuccessful in its contentions that another amount allowed against a sum previously deducted for liquidated damages was affected by jurisdictional error, and that the adjudicator’s decision as to the proportion of the adjudicator’s fees and expenses to be paid by the applicant should be or could be interfered with.
- [4]The applicant submits that it obtained substantial relief and was required to commence and prosecute the proceeding in order to obtain that relief. I accept those submissions.
- [5]The applicant submits that had the first respondent conceded the amount on which the applicant succeeded the application could have been avoided. That the applicant proceeded with the additional subject matters that were decided against it belies that submission to some extent. The applicant relied on a without prejudice offer save as to costs made by the applicant’s solicitors to the first respondent’s solicitors dated 1 March 2021. However, that offer was not more favourable to the first respondent than the order that was obtained by the applicant at the hearing of the proceeding and was not relied upon as a successful Calderbank offer as such.
- [6]In my view, although the applicant enjoyed substantial success on the hearing of the application, for the purposes of costs there could be separate questions or issues of the previously paid amounts, the reduction of the amount of liquidated damages deducted and the proportion of the adjudicator’s fees and expenses for the purposes of the discretionary power to order costs under s 15 of the Civil Proceedings Act 2011 (Qld) and r 681(1) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”). Nevertheless, having regard to the conduct of the proceeding overall, I have concluded that it is better not to proceed in that way.
- [7]The first respondent submits that, having regard to the total amount in dispute, the applicant succeeded to an extent of less than 50 per cent, that the applicant’s conduct of the matter unnecessarily increased costs, and that more than 50 per cent of the resources and time devoted to the relevant questions or issues was devoted to those on which the applicant was not successful.
- [8]In my view, there was no unnecessary increase in costs caused by the applicant’s conduct of the matter. Second, to the extent that the applicant was unsuccessful in relation to the adjudicator’s reduction of the amount of liquidated damages previously deducted by the applicant, it should be recognized that the adjudicator’s treatment of the matter in the amended adjudicator’s decision was not altogether clear. Third, the decision that there was no jurisdictional error associated with the adjudicator’s decision as to the proportion of the adjudicator’s fees and expenses to be paid by the applicant was a comparatively simple point.
- [9]For those reasons, overall, I consider that the applicant’s success was greater than the first respondent’s success. Added to that, no arguable basis for the first respondent to have resisted the application in relation to the previously paid amounts ever emerged in the material or during the hearing of the argument. To that extent, in my view, the first respondent’s position was unreasonable.
- [10]Overall, therefore, in my view, it is appropriate to order that the first respondent pay 50 per cent of the applicant’s costs of the proceeding. This is the appropriate order for costs in relation to the particular question or part of the proceeding on which the applicant succeeded on the basis that 50 per cent is attributable to that question or part of the proceeding under r 684 of the UCPR.
Footnotes
[1] LKB Group Pty Ltd v Niclin Constructions Pty Ltd & Ors [2021] QSC 93.