Toula Holdings Pty Ltd v Lee Turnbull & Co (No 2)
[2023] QSC 56
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Toula Holdings Pty Ltd v Lee Turnbull & Co (No 2)[2023] QSC 56
- Add to List
Toula Holdings Pty Ltd v Lee Turnbull & Co (No 2)[2023] QSC 56
Toula Holdings Pty Ltd v Lee Turnbull & Co (No 2)[2023] QSC 56
SUPREME COURT OF QUEENSLAND
CITATION: | Toula Holdings Pty Ltd & Anor v Lee Turnbull & Co (No 2) [2023] QSC 56 |
PARTIES: | TOULA HOLDINGS PTY LTD (ACN 059 859 684) (first plaintiff) DANTE (NQ) PTY LTD (ACN 100 998 169) (second plaintiff) v LEE TURNBULL & CO (A FIRM) (defendant) |
FILE NO/S: | BS No 10651 of 2019 BS No 12883 of 2022 |
DIVISION: | Trial Division |
PROCEEDING: | Applications |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 24 March 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Orders made on consideration of written submissions with no oral hearing |
JUDGE: | Davis J |
ORDER: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE – COSTS FOLLOW EVENT – INDEMNITY COSTS – where the plaintiffs brought an application for leave to proceed – where the plaintiffs also brought an application under the Corporations Act 2001 (Cth) to validate actions taken while deregistered – where the defendant brought an application to dismiss the plaintiffs’ claim for want of prosecution – where the plaintiffs’ applications failed – where the defendant’s application was successful – where the defendant had served Calderbank offers – where the plaintiffs conceded they ought to pay indemnity costs of their applications and the proceedings – where they resisted paying the costs of the defendant’s application – whether that application was unnecessary – whether the plaintiffs ought to pay the costs of that application on an indemnity basis Corporations Act 2001 (Cth) s 601AB, s 601AH Uniform Civil Procedure Rules 1999 r 280, r 389 |
CASES: | Calderbank v Calderbank [1976] Fam Law 93, cited |
COUNSEL: | No written submissions by the plaintiffs S D McCarthy made written submissions for the defendant |
SOLICITORS: | Simmons & McCartney Lawyers for the plaintiffs Hopgood Ganim Lawyers for the defendant |
- [1]This is the costs determination flowing from the earlier decision of Toula Holdings Pty Ltd & Anor v Lee Turnbull & Co.[1] Lee Turnbull & Co, a firm of solicitors, was sued by its former clients, the plaintiffs, for negligence arising from litigation between the current plaintiffs and third parties in 2013 and 2014. That claim was file BS 10651 of 2019.
- [2]The plaintiffs’ claim was commenced in 2019. The plaintiffs were deregistered[2] pursuant to the provisions of the Corporations Act 2001 (Cth). No step was taken in the proceedings by the plaintiffs for over two years.
- [3]Wishing to proceed with their claim, the plaintiffs brought two applications;
- An originating application seeking orders validating actions taken while each of the plaintiffs were deregistered (the validation application).[3] The validation application was file BS 12883 of 2022.
- For leave to proceed given the delay (the leave to proceed application).[4]
- [4]Lee Turnbull & Co brought an application to dismiss the plaintiffs’ claim for want of prosecution (the dismissal application).[5]
- [5]The result of the three applications were:
- The validation application was dismissed.
- The leave to proceed application was dismissed.
- The dismissal application was granted so that the plaintiffs’ claim in BS10651 of 2019 was dismissed for want of prosecution.
- [6]Orders were made on 13 February 2023 for the exchange of written submissions and the determination of the costs question without further oral hearing.
- [7]The plaintiffs did not file written submissions on costs but their solicitors wrote to Lee Turnbull & Co’s solicitors conceding that because of the results of the proceedings and Calderbank[6] offers which had been made on behalf of Lee Turnbull & Co, they would have to pay costs on the indemnity basis.
- [8]During the course of the hearing on 16 December 2022 I commented to counsel for Lee Turnbull & Co that it may not have been necessary to bring the dismissal application. If the leave to proceed application was not successful then the proceedings could not be advanced. In their letter, the plaintiffs’ solicitors picked up this point and resisted paying the costs of the dismissed application.
- [9]Written submissions on costs were filed on 28 February 2023 on behalf of Lee Turnbull & Co. They sought costs on the indemnity basis of the claim including all three applications. Therefore the only two matters of contention between the parties are:
- whether the plaintiffs ought pay Lee Turnbull & Co’s costs of the dismissal application; and
- if so, whether those costs ought to be paid on an indemnity basis.
- [10]The costs associated with the dismissal application is limited to the preparation, filing and serving of the application itself. There are no additional costs which were attributed to the dismissal application beyond that which had been expended on either the validation application or the leave to proceed application.
- [11]The dismissal application served a useful purpose in that it placed the plaintiffs on notice of Lee Turnbull & Co’s intention to have the claim finally disposed of in the event that the application for leave to proceed was not successful.
- [12]Contrary to my first impressions expressed during argument, it was reasonable for Lee Turnbull & Co to bring the dismissal application. Given Lee Turnbull & Co’s success in having the plaintiffs’ claim determined, and in view of the Calderbank offers it should have its costs on an indemnity cost basis of all three applications.
- [13]The orders are:
The plaintiffs pay the defendant’s costs on the indemnity basis of:
- The plaintiffs’ claim including the applications brought in BS10651 of 2019 being;
- (a)the plaintiffs’ application for leave to proceed; and
- (b)the defendant’s application to dismiss the plaintiffs’ claim for want of prosecution.
- Application BS 12883 of 2022.