Virgtel Ltd & Ors v Zabusky & Ors (No 2)
[2022] QSC 55
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Virgtel Ltd & Ors v Zabusky & Ors (No 2)[2022] QSC 55
Virgtel Ltd & Ors v Zabusky & Ors (No 2)[2022] QSC 55
SUPREME COURT OF QUEENSLAND
CITATION: | Virgtel Ltd & Ors v Zabusky & Ors (No 2) [2022] QSC 55 |
PARTIES: | VIRGTEL LIMITED (first applicant) AND VIRGTEL GLOBAL NETWORKS NV (second applicant) AND VISCAYA ARMADORA SA (INCORPORATED IN PANAMA) (third applicant) AND VISCAYA ARMADORA SA (INCORPORATED IN ANGUILLA) (DEREGISTERED) (fourth applicant) v HARVEY ZABUSKY (first respondent) AND AMALIA ZABUSKY (second respondent) AND EREZ ZABUSKY (third respondent) AND COMMSLOGIC PTY LTD (DEREGISTERED) ACN 109 057 543 (fourth respondent) AND SOFTQUEST SOLUTIONS PTY LTD ACN 057 679 599 (fifth respondent) AND VIRGIN TECHNOLOGIES LIMITED (sixth respondent) |
FILE NO: | BS 6547 of 2005 |
DIVISION: | Trial Division |
PROCEEDING: | Application for costs |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 12 April 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 June 2021 |
JUDGE: | Jackson J |
ORDER: | The order of the Court is that the respondents pay the applicants’ costs of the questions set down on 12 April 2021 and heard on 24 June 2021. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – PARTIAL SUCCESS – where the proceeding was dismissed for want of prosecution and the Court set down for hearing certain questions – where the respondents succeeded only on questions conceded by the applicants that did not require argument – where the applicants succeeded on the remaining disputed questions – whether the respondents should pay the applicants’ costs of those questions Virgtel Ltd & Ors v Zabusky & Ors [2021] QSC 284, cited Civil Proceedings Act 2011 (Qld), s 15, s 20 Uniform Civil Procedure Rules 1999 (Qld), r 681(1) and 693(1). |
COUNSEL: | Written submissions by the parties’ solicitors |
SOLICITORS: | James Conomos Lawyers for the first to third applicant Hayes & Co Lawyers for the first, second, third and fifth respondents |
JACKSON J:
- [1]On 4 March 2021, the respondents filed an application to dismiss the proceeding for want of prosecution.
- [2]On 12 April 2021, the Court ordered the proceeding be dismissed for want of prosecution and set down for hearing the questions:
- (a)whether the applicants should pay the respondents’ costs of the proceeding and the application to dismiss for want of prosecution;
- (b)whether costs ordered to be paid should be assessed on the indemnity basis;
- (c)whether the respondents are entitled to set off any costs orders made in their favour against earlier orders that they pay the applicants’ costs of interlocutory proceedings in the proceeding; and
- (d)how moneys to be paid into Court by the applicants under the 12 April 2021 order are to be dealt with or disbursed.
- (a)
- [3]On 24 June 2021, on the hearing of those questions:
- (a)as to question (a), it was not in dispute that the Court should order that the applicants pay the respondents’ costs of the proceeding including the costs of the application to dismiss for want of prosecution.
- (b)as to question (b), it was disputed whether those costs should be ordered to be assessed on the indemnity basis.
- (c)as to question (c), it was not in dispute that the respondents will be entitled to set off the orders that the applicants pay the respondents’ costs of the proceeding including the costs of the application to dismiss for want of prosecution against earlier costs orders made in favour of the applicants.
- (d)as to question (d), the disputed question was whether the moneys paid into Court should be paid out to the respondents because on the ascertainment of the amounts of the costs payable as between the parties under all the costs orders the balance will so favour the respondents that the moneys in Court should be paid to the respondents.
- (a)
- [4]On 8 November 2021, the Court ordered that the applicants pay the respondents’ costs of the proceeding including the application to dismiss the proceeding for want of prosecution.[1] Otherwise the applicants successfully resisted the orders applied for by the respondents.
- [5]The remaining question is that of the costs of the questions set down on 12 April 2021 and heard on 24 June 2021.
- [6]On the hearing of an interlocutory application, the Court’s statutory power to order costs contained in s 15 of the Civil Proceedings Act 2011 (Qld) is conferred in discretionary language: “[a] court may award costs in all proceedings unless otherwise provided”. Two relevant provisions of the UCPR should be noticed. First, under r 681(1), “[c]osts 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”. Second, r 693(1) provides that “[t]he costs of a proceeding do not include the costs of an application in the proceeding, unless the court orders otherwise”.
- [7]The applicants apply for an order that the respondents pay the costs of the questions set down on 12 April 2021 and heard on 24 June 2021 on the basis that they were successful on the “event” or “events” decided on 8 November 2021 upon the questions set down on 12 April 2021 and heard on 24 June 2021.
- [8]As the questions set down on 12 April 2021 and heard on 24 June 2021 set out above show, there were four relevant “events”. On question (a), the respondents succeeded but there was no dispute about that result on the hearing on 24 June 2021. On question (b), the applicants succeeded. On question (c), the respondents succeeded on the question whether generally there can be a set off of costs orders (which was not disputed) but not on the further question argued by them that any set off can be made before the ascertainment of the relevant amounts under the respective costs orders on the basis that the costs orders in favour of the respondents will exceed the costs orders in favour of the applicants. On question (d), neither of the parties obtained an order for the payment out of the moneys in court.
- [9]The applicants submitted that they were successful on the substantial questions that were set down on 12 April 2021 and heard on 24 June 2021 and, accordingly, the costs of the hearing of the disputed questions should be awarded in their favour.
- [10]The respondents submitted that the costs of the hearing of the application filed on 4 March 2021 should be awarded to the respondents. That order is unnecessary. It refers to the costs of the application to dismiss for want of prosecution. That order has already been made. What is outstanding are the costs of the hearing of the questions set down on 12 April 2021 and heard on 24 June 2021.
- [11]The applicants submitted that nearly all of the 1500 plus pages of affidavit material filed by the respondents for the hearing on 24 June 2021 was irrelevant to the questions set down and decided, particularly the material that went to whether the applicants had retained the solicitors who acted for them in the proceeding. That point was abandoned by the respondents during the hearing on 24 June 2021.
- [12]By their written submissions on the remaining question of costs, the respondents sought to re-agitate the argument as to the retainer of the applicants’ solicitors, without seeking leave to do so, having abandoned the point on the hearing of the questions decided on 8 November 2021. I refuse the respondents leave to do so.
- [13]Also by their written submissions the respondents re-agitated their contention that the costs orders in their favour will exceed the costs orders made in favour of the applicants in this proceeding when they are set off. Perhaps they will or perhaps they will not. But that is irrelevant as to which of the parties should be ordered to pay the costs of the questions set down on 12 April 2021 and heard on 24 June 2021.
- [14]Lastly, by their written submissions the respondents made a number of other arguments irrelevant to the appropriate order for costs of the questions set down on 12 April 2021 and heard on 24 June 2021. They included scandalous allegations that Mr van Leeuwen stole moneys, irrelevant allegations made about Mr Simmonet’s conduct and allegations that the applicants are now defunct. Those factual matters should not have been raised on the present question of costs at all.
- [15]The substance of the applicants’ submissions on costs is correct. They were (mostly) the successful parties on the remaining disputed questions set down on 12 April 2021 and heard on 24 June 2021. The questions on which the respondents succeeded were conceded by the applicants and did not require argument on 24 June 2021 or decision thereafter.
- [16]In the circumstances, the respondents should be ordered to pay the applicants’ costs of the questions set down on 12 April 2021 and heard on 24 June 2021.
Footnotes
[1]Virgtel Ltd & Ors v Zabusky & Ors [2021] QSC 284.