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  4. Paladin Projects Pty Ltd v Visie Three Pty Ltd [No 2] - [2024] QSC 244

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Paladin Projects Pty Ltd v Visie Three Pty Ltd [No 2][2024] QSC 244

Paladin Projects Pty Ltd v Visie Three Pty Ltd [No 2][2024] QSC 244

SUPREME COURT OF QUEENSLAND

CITATION:

Paladin Projects Pty Ltd v Visie Three Pty Ltd & Ors (No 2) [2024] QSC 244

PARTIES:

PALADIN PROJECTS PTY LTD

ACN 604 051 578

(applicant)

v

VISIE THREE PTY LTD

ACN 601 326 667

(first respondent)

NANCY ALEXANDER (ADJUDICATION REGISTRAR)

(second respondent)

DAVID ROBERT THOMAS SEENEY (ADJUDICATOR J1261305)

(third respondent)

FILE NO/S:

BS No 6272 of 2024

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 October 2024

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Williams J

ORDER:

  1. The Applicant pay the First Respondent’s costs in the proceeding until 12 June 2024, to be assessed on the standard basis.
  2. The Applicant pay the First Respondent’s costs in the proceeding after 12 June 2024 to be assessed on the indemnity basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – UNREASONABLE REFUSAL OF OFFER – where the first respondent made a Calderbank offer – where the applicant did not accept that offer within time – whether the expressed reasons why the offer should be accepted were inadequate – whether the offer was clearly more favourable then the final orders – whether the offer was open for a reasonable period of time – whether the applicant acted unreasonably in not accepting the offer.

Building Industry Fairness (Security of Payment) Act 2014 (Qld) s 101(4)

Civil Proceedings Act 2011 (Qld) s 10

Uniform Civil Procedure Rules 1999 (Qld) r 681(1), r 681(2), r 684(1), r 684(2), r 702

Aklia Holdings Pty Ltd v The Carter Group Pty Ltd (in liq) & Others (No 2) [2017] QSC 266, applied

Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107, cited

Built Qld Pty Ltd v Pro-Invest Australian Hospitality Opportunity (ST) Pty Ltd (No 3) [2022] QSC 62, cited

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

Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd [2016] QCA 130, cited

Day v Humphrey [2018] QCA 321, cited

Di Carlo v Dubois [2002] QCA 225, cited

Harbour Radio Pty Limited & Ors v Wagner & Ors [2020] QCA 83, cited

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

J & D Rigging Pty Ltd v Agripower Australia Ltd [2014] QCA 23, cited

McGee v Independent Assessor & Anor (No 2) [2024] QCA 7, applied

Nine Network Australia Pty Ltd & Ors v Wagner & Ors [2021] QCA 84, cited

Roberts v Prendergast [2013] QCA 89, cited

S.H.A. Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd (No 2) [2020] QSC 323, applied

Sequel Drill & Blast Pty Ltd v Whitsunday Crushers Pty Ltd (No 2) [2009] QCA 239, cited

Seven Network Ltd & Anor v News Ltd & Ors (2007) 244 ALR 374; [2007] FCA 1489, cited

Speets Investments v Bencol Pty Ltd (No 2) [2021] QCA 39, applied

Stewart v ATCO Controls Pty Ltd (in Liq) (No 2) (2014) 252 CLR 331; [2014] HCA 31, cited

Tector v FAI General Insurance Company Ltd [2001] 2 Qd R 463; [2000] QCA 426, cited

Wiggins Island Coal Export Terminal Pty Ltd v Civil Mining & Construction Pty Ltd (2021) 7 Q R 1; [2021] QCA 8, cited

Wollongong Coal Ltd v Gujarat NRE India Pty Ltd (No 2) [2019] NSWCA 173, cited

COUNSEL:

D L Atkinson KC for the applicant

B A Reading for the first respondent

SOLICITORS:

McInnes Wilson Lawyers for the applicant

Clayton Utz for the first respondent

  1. [1]
    On 25 September 2024 I published reasons (Reasons) and on 2 October 2024 made orders (Final Orders) in respect of a decision of the Third Respondent made on 7 May 2024 under the Building Industry Fairness (Security of Payment) Act 2014 (Qld) (BIF Act).
  2. [2]
    These reasons use the defined terms set out in the Reasons, unless indicated otherwise.
  3. [3]
    The Final Orders were:

“The order of the Court is that:

  1. Pursuant to s 101(4) of the [BIF Act] and s 10 of the Civil Proceedings Act 2011 (Qld), it is declared that:
  1. Paragraph 76 to 94 of the Adjudication Decision number 2512991 made by the Third Respondent on 7 May 2024 (Adjudicator’s Decision) concerning the Applicants Variation 62 is affected by jurisdictional error and void; and
  1. the balance of the Adjudicator’s Decision remains binding on the parties to the proceeding.
  1. the “Adjudicated Amount” (as that term is defined by s. 88(1)(a) of the [BIF Act]) for the Adjudicator’s Decision is $ nil.”
  1. [4]
    Further directions were made for the parties to file and serve written submissions on costs and any affidavits by 4pm on 4 October 2024, any submissions in reply by 9 October 2024 and that the issue of costs be dealt with on the papers.
  2. [5]
    In accordance with the directions, the Applicant and the First Respondent have filed submissions on costs and submissions in reply.
  3. [6]
    The Applicant’s primary position is that there should be no order of costs against the Applicant in the circumstances. Alternatively, if the Applicant is to pay the First Respondent’s costs it should be on the standard basis, not an indemnity basis.
  4. [7]
    The First Respondent submits that the appropriate order is as follows:
    1. the Applicant pay the First Respondent’s costs in the proceeding until 12 June 2024, to be assessed on the standard basis; and
    2. the Applicant pay the First Respondent’s costs in the proceeding after 12 June 2024 to be assessed on the indemnity basis.
  5. [8]
    The position contended for by the First Respondent is as a consequence of a Calderbank offer made by the First Respondent to the Applicant on 12 June 2024 (Calderbank Offer).
  6. [9]
    Given the divergence in the position in respect of costs, and in particular the First Respondent’s reliance on the Calderbank Offer, it is necessary to consider the respective positions of the parties in detail.
  7. [10]
    The Applicant submits that challenges were made to three parts of the Adjudication Decision, namely Variation 60 (Ground 1), Variation 62 (Ground 2) and the First Respondent’s claim for liquidated damages (Ground 3). The Reasons upheld the challenge in relation to Ground 2. By operation of the Final Orders, parts of the Adjudication Decision dealing with Variation 62 are severed and the balance remains binding on the parties.
  8. [11]
    The Applicant contends that whilst the Final Orders result in no payment being made to the Applicant, the Applicant was successful in part and the position taken was reasonable. It is submitted that the Applicant’s challenges were appropriate and reasonable and that there should be no cost order against the Applicant.
  9. [12]
    The Applicant contends that this position should not be altered as contended for by the First Respondent in circumstances where:
    1. The Calderbank Offer did not lead to a more favourable outcome for the Applicant because it remained the position under the Calderbank Offer that the Applicant received “nothing”.
    2. The Calderbank Offer was made only seven days before the hearing.
    3. The Calderbank Offer was made at a time when the First Respondent’s submissions had not yet been received.
    4. The Calderbank Offer was not more favourable than the Final Orders.
    5. It must be shown that in refusing a Calderbank offer, a party acted unreasonably or imprudently. That was not shown here.
  10. [13]
    The Applicant relies upon the broad discretion of the Court in relation to costs and the context of the Calderbank Offer to support the contention that the discretion should not be exercised to award indemnity costs.[1]
  11. [14]
    The First Respondent relies upon the affidavit of Dale Stuart Brackin affirmed on 4 October 2024. Mr Brackin deposes to the following matters:
    1. The Calderbank Offer being sent from Clayton Utz to McInnes Wilson Lawyers at 5.16pm on 12 June 2024. The Calderbank Offer was open for acceptance until 2pm on 18 June 2024.
    2. The Applicant did not respond to the Calderbank Offer by the time for acceptance or at all.
  12. [15]
    The letter containing the Calderbank Offer is exhibited at “DSB-01”.
  13. [16]
    The Calderbank Offer:
    1. Is dated 12 June 2024 and is stated to remain open until 2pm on 18 June 2024.
    2. Is marked “without prejudice save as to costs” and is stated to be made in accordance with the principles in Calderbank v Calderbank [1975] 3 All ER 333.
    3. Expressly states that should the Calderbank Offer not be accepted, the First Respondent reserved its rights to rely upon the Calderbank Offer to seek an order for payment of costs on an indemnity basis.
    4. States that the First Respondent had considered the Applicant’s submissions and maintained the view that the Third Respondent did not exceed his jurisdiction in making the Adjudication Decision.
    5. Provides that notwithstanding that view, the First Respondent was prepared to resolve the proceeding by a consent order as follows:
      1. A declaration that:
        1. that part of the Adjudication Decision deciding Variation 60 was affected by jurisdictional error and void (being Ground 1); and
        2. that part of the Adjudication Decision deciding Variation 62 was affected by jurisdictional error and void (being Ground 2).
      2. The application otherwise be dismissed.
      3. No order as to costs.
    6. States that the First Respondent considered this was a “generous compromise” in circumstances where the Applicant would not be precluded from pursuing Variation 60 and Variation 62 in a further payment claim and that the First Respondent was forgoing any claim for costs.
  14. [17]
    The First Respondent contends that it was largely successful in its defence of the proceeding and obtained a result that was more favourable than the Calderbank Offer. It is in these circumstances that the First Respondent submits that the rejection of the Calderbank Offer justifies a departure from the “usual rule” as to costs and the appropriate order is for costs on a standard basis up to 12 June 2024 and indemnity costs thereafter.
  15. [18]
    The First Respondent relies on the comparison of the outcome in the Final Orders and the Calderbank Offer, including:
    1. Under the Final Orders only Variation 62 is set aside and can be pursued further in the adjudication process under the BIF Act (being Ground 2).
    2. Under the Calderbank Offer both Variation 60 and Variation 62 is set aside and can be pursued further in the adjudication process under the BIF Act (being Grounds 1 and 2).
  16. [19]
    In these circumstances, the First Respondent submits that under the terms of the Calderbank Offer the Applicant would be in a more favourable position than under the Final Orders.
  17. [20]
    In support of its position, the First Respondent relies upon the statement of the legal principles by Bond J (as his Honour then was) in S.H.A. Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd (No 2).[2]
  18. [21]
    In particular, the First Respondent relies upon the following principles:
    1. The Court will depart from the usual rule as to costs whether circumstances warrant it. The correct approach is to consider whether the rejection of a Calderbank Offer, in all the circumstances, justifies the departure from the usual rule.
    2. The application of a test of “reasonableness” is directed at balancing the competing policy considerations of appropriately encouraging settlement and not discouraging potential litigants from bringing their disputes to the courts.
    3. Whether the rejection of a Calderbank offer is unreasonable will always involve matters of judgment and impression. However, six matters are identified to which the Court should have regard.
  19. [22]
    The First Respondent addresses the six matters in turn:
    1. The stage of the proceeding at which the offer was received. The Calderbank Offer was made on 12 June 2024 being six business days after the First Respondent had received the Applicant’s outline of submissions and seven days prior to the hearing of the proceeding. Further, the Calderbank Offer was made less than one month after the proceeding was commenced on 16 May 2024.
    2. The time allowed to consider the offer. It is submitted there was a reasonable time before the hearing of the proceeding to consider the Calderbank Offer. In particular, the Applicant had the benefit of the First Respondent’s written submissions from 14 June 2024, two days after the Calderbank Offer was made.
    3. The extent of the compromise offered. The First Respondent’s Calderbank Offer in effect conceded Ground 1 and Ground 2, in respect of Variation 60 and Variation 62 respectively. This was a genuine compromise as, had the Calderbank Offer been accepted, the Applicant would be in a far better position than it is now.  The Calderbank Offer had the benefit that, if accepted, it would not have precluded the Applicant from pursuing Variation 60 and Variation 62 in a further payment claim and any further adjudication in respect of those Variation claims. That benefit was identified and specifically articulated in the Calderbank Offer.
    4. The prospects of success assessed at the date of the offer. The Applicant was required to undertake an objective assessment of the strengths and weaknesses of the relief sought in the application together with an assessment of the possible exposure to costs if the Applicant rejected the Calderbank Offer, knowing the law in respect of Calderbank offers.[3] In the circumstances of this case, the Applicant had the benefit of the First Respondent’s written outline from 14 June 2024, being two days after the Calderbank Offer was made and four days before the time for acceptance of the Calderbank Offer. This would have assisted the Applicant undertaking the objective assessment task. Further, the First Respondent’s submissions detailed why the relief sought in respects of Ground 1 and Ground 3 was misconceived, and the majority of this reasoning was accepted in the Reasons. Whilst the outcome in the judgment is not determinative, it is a relevant factor to be taken into account in considering the reasonableness of not accepting a Calderbank offer.[4]
    5. The clarity with which the terms of the offer were expressed.  The terms of the Calderbank Offer were clear.
    6. Whether the offer foreshadowed an application for indemnity costs in the event that the offer was rejected.  The Calderbank Offer expressly stated that the First Respondent reserved its right to seek costs on an indemnity basis.
  20. [23]
    In all of the circumstances, the First Respondent contends that these factors strongly support a finding that the Applicant acted unreasonably in not accepting the Calderbank Offer and warrant a departure from the usual order as to costs.
  21. [24]
    The principles identified in the authorities are not contentious. The Applicant acknowledges the statement of the principles by Bond J in S.H.A. Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd (No 2).[5] In particular, it is not contentious that the critical question is whether the rejection of the Calderbank offer is unreasonable in all the circumstances and that this will always involve matters of judgment and impression.
  22. [25]
    The Applicant does not cavil with the factual matters set out in the First Respondent’s analysis of the six factors to which Bond J refers. However, the Applicant refers to the following additional points:
    1. The Applicant contends that the position taken by the Applicant was, at least, arguable. Further, the arguments were considered in detail in the Reasons in respect of each of the three grounds and the Applicant was ultimately successful on Ground 2.
    2. The Calderbank Offer only provided a modest benefit to the Applicant because the net effect of accepting the Calderbank Offer was that the Applicant would not receive any payment from the First Respondent. The Applicant contends that it cannot be said that it was unreasonable for the Applicant to press for a better outcome, or that the Applicant obtained a less favourable outcome than the Calderbank Offer.
    3. The Calderbank Offer on its face did not provide any detailed reasoning as to why it should be accepted and was received at a time when the First Respondent had not yet provided any written submissions.
  23. [26]
    The Applicant contends that in these circumstances the Court should decline to order indemnity costs.
  24. [27]
    The First Respondent makes the following additional points in reply:
    1. The First Respondent says that it is not relevant that the Applicant’s challenges were “appropriate and reasonable”. The First Respondent relies on its summary of the relevant principles.[6]
    2. The Applicant’s reliance on the case of Di Carlo v Dubois[7] is not relevant. That case concerned whether an indemnity costs order should be made by reason of a party’s conduct and did not concern consideration of an offer to settle. The relevant issue here is whether it is appropriate to make an indemnity costs order where a Calderbank offer has been rejected by the unsuccessful party.[8]
    3. The Respondent submits that the Applicant’s submission that the Calderbank Offer does not lead to a more favourable outcome is wrong.[9] If the Calderbank Offer was accepted, this would have resulted in a more favourable outcome as compared to the position that the Applicant is in now. There are at least two reasons for this conclusion:
      1. The Calderbank Offer included a term that there be no order as to costs.  The First Respondent was giving up its entitlement to costs. The benefit to the Applicant was not being liable for any of the First Respondent’s costs, particularly in respect of the costs prior to the Calderbank Offer and in respect of Ground 3. 
      2. If the Calderbank Offer had been accepted, the Applicant would have been able to pursue Variation 60 and Variation 62 in a further payment claim and any adjudication in respect of those variation claims. Following the Final Orders, the Applicant can pursue Variation 62 but may not pursue any amount in excess of what was awarded in respect of Variation 60 in a further payment claim, or on any adjudication in respect of that variation claim.[10]
    4. The First Respondent contends that to the extent that the Applicant suggests that it did not have a reasonable opportunity to consider the Calderbank Offer[11] that this should be rejected. The Calderbank Offer was open for seven days[12] and it is submitted that the proceeding was not particularly complicated. Further, the Applicant ought to already have known the relative strengths and weaknesses of its case at the time it received the Calderbank Offer. Accordingly, the timeframe that the Calderbank Offer was open is reasonable.
    5. The Applicant does not acknowledge[13] that the First Respondent’s written submissions were received on 14 June 2024, two days after the Calderbank Offer was made and four days before the Calderbank Offer expired.
  25. [28]
    The relevant rules in the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) are as follows:

“681 General rule about costs

  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. Subrule (1) applies unless these rules provide otherwise.

…

684 Costs of question or part of proceeding

  1. The court may make an order for costs in relation to a particular question in, or a particular part of, a proceeding.
  1. 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. [29]
    The Court has a wide discretion to make an order for costs, including in relation to a particular question or part of a proceeding. The ultimate issue to be considered is what cost order is appropriate in the circumstances.
  2. [30]
    Rule 702 UCPR is also relevant, and costs are to be assessed on the standard basis unless the UCPR or an order of the Court provides otherwise.
  3. [31]
    The First Respondent was successful in relation to Ground 1 and Ground 3 and the starting point would usually be that the Applicant should be ordered to pay the First Respondent’s costs of and incidental to the application on a standard basis, unless another order is appropriate.
  4. [32]
    The Court has the discretion to order indemnity costs in appropriate circumstances. In accordance with the authorities, the unreasonable refusal of a Calderbank offer may be a proper basis for the exercise of the Court’s discretion.
  1. [33]
    In the Court of appeal decision of McGee v Independent Assessor & Anor (No 2)[14] Cooper J[15] helpfully summarised the relevant principles including as follows:
    1. The discretion provided by r 681 UCPR is wide but is informed by the statement of principle that the usual exercise of the discretion is that costs follow the event.[16]
    2. A recognised circumstance in which the court may exercise its discretion to order costs on the indemnity basis is where a party unreasonably rejects or fails to accept a Calderbank offer.[17]
    3. There is no presumption of disposition in favour of ordering an assessment on the indemnity basis simply because a party rejects an offer and subsequently obtains a less favourable judgment.[18]
    4. The failure to accept a Calderbank offer is a matter to which a court should have regard when considering whether to order indemnity costs. The critical question is whether the rejection of the offer was unreasonable in the circumstances. The party seeking the order must show that the other party acted unreasonably or imprudently in not accepting the offer.[19]
    5. The consideration of whether the rejection of an offer was unreasonable should ordinarily have regard to at least the following matters:[20]
      1. the stage of the proceeding at which the offer was received;
      2. the time allowed for the offeree to consider the offer;
      3. the extent of the compromised offer;
      4. the offeree’s prospects of success, as assessed at the date of the offer;
      5. the clarity with which the terms of the offer were expressed; and
      6. whether the offer foreshadowed an application for indemnity costs in the event of the offeree rejecting it.
    6. The non-acceptance of a Calderbank offer may in some cases be a strong factor to be taken into account on an application for indemnity costs.[21]
    7. If the offeree makes a submission that rejection of the Calderbank offer was not unreasonable, then it should at least point to a reason for not accepting the offer beyond the usual prospects of being successful in litigation.[22]
  1. [34]
    The Calderbank Offer complied with the technical requirements to be a valid Calderbank offer. 
  2. [35]
    Generally, the onus lies on the party seeking an order for indemnity costs to establish the entitlement to an award of indemnity costs based on the unreasonable rejection of an offer to compromise.[23]
  3. [36]
    The question is whether it was unreasonable for the Applicant to reject the Calderbank Offer, considered at the time the offer was made.
  4. [37]
    I agree with the Respondent’s analysis of the six factors identified by Bond J (as his Honour then was) in S.H.A. Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd (No 2).[24] In respect of the additional matters raised by the Applicant:
    1. While the grounds may have been arguable and had to be grappled with in detail in the Reasons, that does not mean that the Applicant, having received the Calderbank Offer, was not required to undertake an assessment of the prospects of success and an assessment of the possible exposure to costs if the matter proceeded to trial.
    2. The Calderbank Offer contained a genuine compromise of the proceeding.
    3. The Calderbank Offer, if accepted was clearly more favourable than the outcome in the Final Orders both in respect of being able to further pursue Variation 60 and costs as discussed above.
    4. While the Calderbank Offer was open for a period of less than 14 days, the BIF Act process has short timeframes which require the parties to identify and deal with the relevant issues efficiently.  Here the issues were clearly identified through the Payment Claim, the Payment Schedule, the Adjudication Application, the Adjudication Response and the Adjudication Decision.  The application in this Court was commenced within two weeks after the Adjudication Decision[25] and the hearing occurred approximately one month after the application was filed.[26]  There is no evidence from the Applicant that the time was not reasonable to consider the Calderbank Offer. In all of these circumstances, the Calderbank Offer being open for six days was reasonable.
    5. Whilst the Calderbank Offer did not provide any detailed reasoning as to why it should be accepted and was received at a time when the First Respondent had not yet provided its written submissions, this needs to be considered in the following context:
      1. The First Respondent’s detailed submissions were provided to the Applicant two days after the Calderbank Offer was made and four days before the Calderbank Offered expired.
      2. Consent orders were made by the Registrar on 23 May 2023 providing a timetable for the submissions and affidavit material to accommodate a hearing on the first available date after 18 June 2024.[27] These orders included the Applicant’s submissions and affidavit material being filed and served by 4pm on 4 June 2024 and the First Respondent’s submissions and affidavit material being filed and served by 4pm on 14 June 2024.
      3. Through the BIF Act adjudication procedure the matters in dispute are clearly identified through the Payment Claim, the Payment Schedule, the Adjudication Application, the Adjudication Response and the Adjudication Decision. 
      4. The grounds available to challenge an adjudicator’s decision are relatively narrow and the submissions provided under the timetable would have been able to be evaluated in the time the Calderbank Offer remained open.
    6. The Applicant knew that the First Respondent’s position had not altered as a result of consideration of the Applicant’s submissions and maintained that there was no jurisdictional error by the Third Respondent.  The First Respondent’s submissions received two days later in accordance with the agreed directions fully articulated the First Respondent’s position on all three grounds.
  5. [38]
    Further:
    1. The Applicant was legally advised and should have been aware of the consequences of the rejection (or non-acceptance) of the Calderbank Offer.  By proceeding to have the issues in the proceeding determined at the trial, the Applicant did so knowing that the litigation risks included the potential reallocation of the costs risks.  As Bond J (as his Honour then was) observed in S.H.A. Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd (No 2)[28]at [13] from the time of the unreasonable rejection of the offer “notionally the real cause and occasion of the litigation is the unreasonable attitude adopted by the offeree.”[29]
    2. The issues and legal principles were sufficiently known at the time of the Calderbank Offer to enable the Applicant to weigh up the risks of proceeding to trial.
    3. In all of the circumstances, if the Applicant did not “better” the Calderbank Offer at the trial, the Applicant was at risk of having to pay the Respondent’s costs on an indemnity basis at least from the expiration of the Calderbank Offer.
  6. [39]
    Ultimately, the Applicant could and did choose to press ahead and have the issues determined by the Court at trial.  However, this occurred in the context of the possible reallocation of the costs risk if the rejection of the Calderbank Offer was established to have been unreasonable.
  7. [40]
    In all of the circumstances, I am satisfied that the Applicant’s rejection of the Calderbank Offer was unreasonable and justifies a departure from the general costs rule in r 681 UCPR.
  8. [41]
    There is an additional issue as to whether the order should take into account that the Applicant was successful in relation to the Variation 62.
  9. [42]
    Neither party made submissions as to whether the costs should be further apportioned to take account of Applicant’s success in respect of Variation 62.  The Court does have a wide discretion to make an order for costs in relation to a particular question or part of the proceeding.  Ultimately, the issue to be determined is what costs order is appropriate in the circumstances.
  10. [43]
    Whilst there were submissions and evidence at the trial that directly related to Variation 62, substantial parts of the submissions dealt with the legislative scheme and the relevant authorities in respect of jurisdictional error in the context of the BIF Act (and equivalents).  It is difficult to identify a logical way to apportion the costs in respect of the three grounds.
  11. [44]
    Difficulties of this nature were referred to by Bond J (as his Honour then was) in Aklia Holdings Pty Ltd v The Carter Group Pty Ltd (in liq) & Others (No 2)[30] where his Honour stated as follows:

“…

  1. Costs of an application in a proceeding are in the discretion of the Court but follow the event unless the court orders otherwise: UCPR r 681. 
  1. The  word  ‘event’  is  to  be  approached  distributively  with  the  consequence  that  it refers to the event of an issue or of each separate issue, if there is more than one, in the proceeding.
  1. The  application  of  the  general  principle  may  lead  to  costs  orders  which  reflect different  results  on  separate  events  or  issues,  unless  the  Court  considers  that  some other order is more appropriate.
  1. The circumstances which a Court might consider in determining whether some other order is more appropriate, and, if so, its form include:
  1. the preference to avoid the complicated form of assessment that would follow if different issues are determined in different directions as between the parties  and costs were to be awarded in respect of issues in the technical sense;
  1. the  possibility  of  taking  the  approach  of  identifying  heads  of  controversy  or ‘units  of  litigation’  (rather  than  what  might  technically  be  regarded  as  issues on the pleadings) as the criterion for awarding costs;
  1. where  a  party  has  succeeded  on  one  of  two  ways  to  the  same  outcome  in  a particular unit of litigation, a court might regard the costs of the second way on which  that  party  failed  as  not  so  distinct  conceptually  or  practically  as  to warrant making a costs order which reflected that party’s failure on the second avenue of success; and
  1. on  the  other  hand,  where,  in  a  particular  unit  of  litigation,  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.”
  1. [45]
    Further, Bond J, with whom Sofronoff P and Callaghan J agreed, in Speets Investments v Bencol Pty Ltd (No 2)[31] stated at [17]:

“Of course, it does not follow that an issues-based costs order should always be made in circumstances analogous to those described by McMurdo J in BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No 2). Where 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. Courts often prefer to avoid the complicated form of costs assessment that would follow if different issues are determined in different directions as between the parties and costs were to be awarded in respect of issues. In this regard, in Wollongong Coal Ltd v Gujarat NRE India Pty Ltd (No 2) [2019] NSWCA 173, the New South Wales Court of Appeal observed at [9] where taking such an approach might result in a protracted assessment process:

‘… It is more efficient, and fairer, for the court simply to net-off [orders for issues in different directions as between the parties], which it is entitled to do (see Day v Humphrey [2018] QCA 321 at [13] per the court). Such an assessment will, undoubtedly be ‘rough and ready’ (Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 at [5]), and that is entirely permissible’.”

  1. [46]
    In the circumstances of the current case, if the costs of Variation 62 were separately dealt with this could result in an overly complicated form of assessment. This is a factor relevant to the exercise of the Court’s discretion.
  2. [47]
    Whilst the Applicant was successful in respect of Variation 62, considering all of the circumstances, I consider the order proposed by the First Respondent is appropriate.
  3. [48]
    Accordingly, the Court orders:
  1. the Applicant pay the First Respondent’s costs in the proceeding until 12 June 2024, to be assessed on the standard basis; and
  2. the Applicant pay the First Respondent’s costs in the proceeding after 12 June 2024 to be assessed on the indemnity basis.

Footnotes

[1]Wiggins Island Coal Export Terminal Pty Ltd v Civil Mining & Construction Pty Ltd (2021) 7 QR 1; [2021] QCA 8. See in particular [80]-[81].

[2][2020] QSC 323 at [8]-[14].

[3]Built Qld Pty Ltd v Pro-Invest Australian Hospitality Opportunity (ST) Pty Ltd (No 3) [2022] QSC 62 at [259] and [260].

[4]Built Qld Pty Ltd v Pro-Invest Australian Hospitality Opportunity (ST) Pty Ltd (No 3) [2022] QSC 62 at [262].

[5][2020] QSC 323 at [14].

[6]In reply to [4] of the Applicant’s primary submissions on costs.

[7][2002] QCA 225 at [35]-[38].

[8]In reply to [5] of the Applicant’s primary submission on costs.

[9]In reply to [6(a)] of the Applicant’s primary submissions on costs.

[10]This is consistent with the position that the Applicant took at the hearing that unless and until it was declared invalid, the Applicant was precluded from pursuing Variation 60.

[11]In reply to [6(b)] of the Applicant’s primary submissions on costs.

[12]The offer was received late on 12 June and was open until 18 June 2024. It was effectively open for 6 days.

[13]See [6(e)] of the Applicant’s primary submissions on costs.

[14][2024] QCA 7 at [21]-[26].

[15]With whom Dalton JA agreed and Bond JA identified as correct at [5] and [2] respectively.

[16]At [21], citing Sequel Drill & Blast Pty Ltd v Whitsunday Crushers Pty Ltd (No 2) [2009] QCA 239 at [3]; Nine Network Australia Pty Ltd & Ors v Wagner & Ors [2021] QCA 84 at [11]-[12].

[17]At [22]; citing Harbour Radio Pty Limited & Ors v Wagner & Ors [2020] QCA 83 at [3].

[18]At [22]; citing Tector v FAI General Insurance Company Ltd [2001] 2 Qd R 463 at [5] and Roberts v Prendergast [2013] QCA 89 at [14], [13] and [26]-[29].

[19]At [23] quoting J & D Rigging Pty Ltd v Agripower Australia Ltd [2014] QCA 23 at [5].

[20]At [23] quoting J & D Rigging Pty Ltd v Agripower Australia Ltd [2014] QCA 23 which cited with approval the matter set out by the Victorian Court of Appeal in Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435 at [25], see also the reasons of Bond JA in McGee at [2] referencing his earlier decision of S.H.A Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd (No 2) [2020] QSC 323 at [8]-[14].

[21]McGee v Independent Assessor & Anor ([No 2] [2024] QCA 7 at [25], citing the High Court decision of Stewart v ATCO Controls Pty Ltd (in Liq) (No 2) (2014) 252 CLR 331 at [4].

[22]At [25] and [26], quoting Stewart v ATCO Controls Pty Ltd (in Liq) (No 2) (2014) 252 CLR 331 and citing Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd [2016] QCA 130 at [2].

[23]Seven Network Ltd & Anor v News Ltd & Ors (2007) 244 ALR 374 at [59]-[63].

[24][2020] QSC 323 at [8]-[14].

[25]On 7 May 2024.

[26]The Application is dated 16 May 2024 and the hearing was held on 19 June 2024.

[27]Document 15 on the Court file. Consent orders made by the Registrar on receipt of a request for consent order filed 23 May 2024.

[28][2020] QSC 323.

[29]See also Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435 at [21].

[30][2017] QSC 266 at [4].

[31][2021] QCA 39.

Close

Editorial Notes

  • Published Case Name:

    Paladin Projects Pty Ltd v Visie Three Pty Ltd & Ors (No 2)

  • Shortened Case Name:

    Paladin Projects Pty Ltd v Visie Three Pty Ltd [No 2]

  • MNC:

    [2024] QSC 244

  • Court:

    QSC

  • Judge(s):

    Williams J

  • Date:

    18 Oct 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Aklia Holdings Pty Ltd v The Carter Group Pty Ltd (in liq) (No 2) [2017] QSC 266
2 citations
Jump To
Cite 1 - [2017] QSC 266
Cite 2 - [2017] QSC 266
Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107
2 citations
Jump To
Cite 1 - [2008] FCAFC 107
Cite 2 - [2008] FCAFC 107
Built Qld Pty Ltd v Pro-Invest Australian Hospitality Opportunity (St) Pty Ltd [No 3] [2022] QSC 62
3 citations
Jump To
Cite 1 - [2022] QSC 62
Cite 2 - [2022] QSC 62
Cite 3 - [2022] QSC 62
Calderbank v Calderbank (1975) 3 All E.R. 333
2 citations
Jump To
Cite 1 - (1975) 3 All E.R. 333
Cite 2 - (1975) 3 All E.R. 333
Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd [2016] QCA 130
2 citations
Jump To
Cite 1 - [2016] QCA 130
Cite 2 - [2016] QCA 130
Day v Humphrey [2018] QCA 321
2 citations
Jump To
Cite 1 - [2018] QCA 321
Cite 2 - [2018] QCA 321
Di Carlo v Dubois [2002] QCA 225
2 citations
Jump To
Cite 1 - [2002] QCA 225
Cite 2 - [2002] QCA 225
Harbour Radio Pty Limited v Wagner [2020] QCA 83
2 citations
Jump To
Cite 1 - [2020] QCA 83
Cite 2 - [2020] QCA 83
Hazeldene's Chicken Farm Pty Ltd v Victorian Work Cover Authority (2005) 13 VR 435
3 citations
Jump To
Cite 1 - (2005) 13 VR 435
Cite 2 - (2005) 13 VR 435
Cite 3 - (2005) 13 VR 435
Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298
1 citation
Jump To
Cite 1 - [2005] VSCA 298
J & D Rigging Pty Ltd v Agripower Australia Limited [2014] QCA 23
3 citations
Jump To
Cite 1 - [2014] QCA 23
Cite 2 - [2014] QCA 23
Cite 3 - [2014] QCA 23
McGee v Independent Assessor [No 2] [2024] QCA 7
3 citations
Jump To
Cite 1 - [2024] QCA 7
Cite 2 - [2024] QCA 7
Cite 3 - [2024] QCA 7
Nine Network Australia Pty Ltd v Wagner [2021] QCA 84
2 citations
Jump To
Cite 1 - [2021] QCA 84
Cite 2 - [2021] QCA 84
Roberts v Prendergast [2013] QCA 89
2 citations
Jump To
Cite 1 - [2013] QCA 89
Cite 2 - [2013] QCA 89
S.H.A. Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd (No 2) [2020] QSC 323
6 citations
Jump To
Cite 1 - [2020] QSC 323
Cite 2 - [2020] QSC 323
Cite 3 - [2020] QSC 323
Cite 4 - [2020] QSC 323
Cite 5 - [2020] QSC 323
Cite 6 - [2020] QSC 323
Sequel Drill & Blast Pty Ltd v Whitsunday Crushers Pty Ltd (No 2) [2009] QCA 239
2 citations
Jump To
Cite 1 - [2009] QCA 239
Cite 2 - [2009] QCA 239
Seven Network Ltd and Anor v News Ltd and Ors [2007] 244 ALR 374
2 citations
Jump To
Cite 1 - [2007] 244 ALR 374
Cite 2 - [2007] 244 ALR 374
Seven News Network Ltd v News Ltd [2007] FCA 1489
1 citation
Jump To
Cite 1 - [2007] FCA 1489
Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39
2 citations
Jump To
Cite 1 - [2021] QCA 39
Cite 2 - [2021] QCA 39
Stewart v Atco Controls Pty Ltd (2014) 252 CLR 331
3 citations
Jump To
Cite 1 - (2014) 252 CLR 331
Cite 2 - (2014) 252 CLR 331
Cite 3 - (2014) 252 CLR 331
Stewart v Atco Controls Pty Ltd [2014] HCA 31
1 citation
Jump To
Cite 1 - [2014] HCA 31
Tector v FAI General Insurance Co Ltd[2001] 2 Qd R 463; [2000] QCA 426
3 citations
Jump To
Cite 1 - [2000] QCA 426
Cite 2 - [2001] 2 Qd R 463
Cite 3 - [2001] 2 Qd R 463
Wiggins Island Coal Export Terminal Pty Limited v Civil Mining & Construction Pty Ltd(2021) 7 QR 1; [2021] QCA 8
4 citations
Jump To
Cite 1 - [2021] QCA 8
Cite 2 - [2021] QCA 8
Cite 3 - (2021) 7 QR 1
Cite 4 - (2021) 7 QR 1
Wollongong Coal Ltd v Gujarat NRE India Pty Ltd (No 2) [2019] NSWCA 173
2 citations
Jump To
Cite 1 - [2019] NSWCA 173
Cite 2 - [2019] NSWCA 173

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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