Drummond v Davidson [No 2][2024] QSC 207

SUPREME COURT OF QUEENSLAND

1. [1]
   On 28 August 2024, I dismissed the defendants’ applications for a permanent stay in each proceeding.  The only issue that remains is the one of costs.
2. [2]
   Costs of an application are in the discretion of the court, but follow the event unless the court otherwise orders.^[1]
3. [3]
   The defendants submit that costs ought to either be reserved or made the parties’ costs in the cause.  In support of those submissions, the defendants first argue that there are defences available to the defendants such that the plaintiff may fail in the ultimate determination of the substantive proceedings.  Second, there has been no explanation for the delay in commencing the proceedings and third, the application should be treated as analogous to an unsuccessful summary judgment application and ordinarily, in that case, costs would not follow the event.
4. [4]
   I deal with these submissions in reverse order.
5. [5]
   The analogy that the defendant makes to reserving costs on a summary judgment application has some applicability, but the difference is that r 299 Uniform Civil Procedures Rules 1999 (Qld) specifically applies to costs and summary judgment applications. No such similar rule pertains to stay applications. Rather, the starting proposition is rule 681.
6. [6]
   I accept the plaintiff’s submission that in respect of the explanation for the delay, that point cannot be raised now.  It was expressly disavowed as being relevant during the opening and, when it was sought to be raised again during closing submissions, it was retreated from.  The point cannot be relied upon now, but particularly in circumstances where Mr Drummond was available for cross-examination, gave some explanation for the delay, and was not cross-examined on the issue.
7. [7]
   Finally, whilst there is a prospect that the plaintiff’s claims will be ultimately unsuccessful, that is a risk that the plaintiff takes in prosecuting two sets of proceedings based on an alleged oral agreement that is over two decades old in the face of a variety of defences that might be available.  In the same way, however, the defendants in bringing two unsuccessful applications for a stay were faced with a similar risk, and nevertheless chose to proceed.  They did so knowing that the defence of laches could have been a significant factor in the dismissal of their application.  It was raised in correspondence between the parties and formed a part of the plaintiff’s written outline of submissions.  Furthermore, there was authority to the effect that the existence of that defence could be a significant factor in declining the relief which the defendants sought.^[2]  That neither the defendants nor the plaintiff located that authority before the hearing is not to the point.  It existed and the proceedings were conducted apparently irrespective of it. 
8. [8]
   Parties take risks when they conduct litigation.  A costs risk is plainly one of the most significant of these.  That the risk eventuates for one of them is not a reason to depart from the usual rule that costs follow the event. The defendants have not displaced the general rule that costs should follow the event.
9. [9]
   The defendants are ordered to pay the plaintiff’s costs of each application on the standard basis.