Recycling Developments Pty Ltd v Bespoke Recycling Industries Pty Ltd [No 2]
[2024] QSC 67
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- Unreported Judgment
- Recycling Developments Pty Ltd v Bespoke Recycling Industries Pty Ltd [No 2][2024] QSC 67
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Recycling Developments Pty Ltd v Bespoke Recycling Industries Pty Ltd [No 2][2024] QSC 67
Recycling Developments Pty Ltd v Bespoke Recycling Industries Pty Ltd [No 2][2024] QSC 67
SUPREME COURT OF QUEENSLAND
CITATION: | Recycling Developments Pty Ltd v Bespoke Recycling Industries Pty Ltd (No 2) [2024] QSC 67 |
PARTIES: | RECYCLING DEVELOPMENTS PTY LTD (ACN 132 325 314) (first plaintiff) TEB ENTERPRISES PTY LTD (ACN 142 685 372) ATF PERROTT FAMILY TRUST (ABN 95 197 523 153) (second plaintiff) v BESPOKE RECYCLING INDUSTRIES PTY LTD (ACN 634 377 030) (first defendant) ROCKY POINT HOLDINGS PTY LTD (ACN 645 224 755) ATF ROCKY POINT TRUST (ABN 96 370 426 600) (second defendant) |
FILE NO/S: | BS 4963 of 2022 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 2 May 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers. Written submissions of the plaintiffs filed on 2 April 2024. Written submissions of the defendants filed on 9 April 2024 |
JUDGE: | Cooper J |
ORDER: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INTERLOCUTORY PROCEEDINGS – COSTS IN THE CAUSE – where the application of the second plaintiff for the removal of a caveat was dismissed – where defendants seek plaintiffs’ costs of the application to remove the caveat on standard basis – where second defendant’s entitlement to specific performance of its option to purchase the subject land from the second plaintiff remains unresolved and pending determination at trial such that all issues pertaining to the caveat removal application have not been resolved in the defendants’ favour – where the appropriate order as to costs is dependent on whether the defendants succeed or fail to establish the second defendant’s interest in the land at trial – whether the defendants are entitled to standard costs of the application Land Title Act 1994 (Qld), s 127(1) Clements v Loel [2023] QSC 271, cited Goodwin v Gilbert [2000] QSC 309, cited O'Keefe Nominees Pty Ltd v BP Australia (No 2) (1995) 55 FCR 391, cited T&L Byrne Excavations Pty Ltd v Robinson [2021] QSC 279, cited Walters v Perton (No 2) [2019] VSC 542, cited |
COUNSEL: | D de Jersey KC with J Byrnes for the plaintiffs NH Ferrett KC with EJ Mijo for the defendants |
SOLICITORS: | Clayton Utz for the plaintiffs Francom Legal for the defendants |
Introduction
- [1]On 22 March 2024, I delivered my judgment:[1]
- dismissing an application by the second plaintiff under s 127(1) of the Land Title Act 1994 (Qld) to remove caveat number 722329545 which was lodged pursuant to leave granted by Davis J on 17 February 2023;[2]
- allowing an application by the defendants to strike out parts of the third amended statement of claim.
- [2]The parties have filed written submissions addressing the costs of both applications.
- [3]The parties are agreed that the plaintiffs should pay the defendants’ costs of the strike out application on the standard basis. That application was made in paragraph 3 of the interlocutory application filed by the defendants on 13 November 2023. The other paragraphs of that application were not argued before me, and the parties are agreed that they should each bear their own costs of those additional paragraphs.
- [4]As to the costs of the application to remove the caveat:
- the plaintiffs seek an order that those costs be each parties’ costs in the proceeding (or, alternatively, that the costs be reserved);
- the defendants seek an order that the second plaintiff pay their costs on the standard basis.
Parties’ submissions
- [5]The plaintiffs rely upon the following judicial observations concerning the character of an application to remove a caveat: (i) a caveat has been described as a statutory injunction, and a caveator as being in a similar position to an applicant for an interlocutory injunction;[3] (ii) the caveator bears the onus on an application to remove a caveat;[4] and (iii) an application to remove a caveat amounts in substance to an application to summarily dismiss the caveator’s claim to a proprietary interest sufficient to sustain the caveat.[5]
- [6]From that point, the plaintiffs submit that usual practices which have developed in respect of the costs of interlocutory injunctions and summary judgment applications can provide guidance in the exercise of the costs discretion in the present context. They refer to authorities which describe those usual practices as being:
- following a successful application for an interlocutory injunction, to order that the costs be costs in the proceeding,[6] or to reserve the costs,[7] on the basis that the determination of the application does not finally determine the parties’ substantive rights or obligations, but only the assessment of whether there is an arguable case for the relief sought and where the balance of convenience lies;
- following the dismissal of an application for summary judgment, to make an order that the costs be in the proceeding,[8] on the basis that an unsuccessful applicant for summary judgment might ultimately succeed at trial and its success would entitle it to recover all of its costs in the proceeding.
- [7]On this basis, the plaintiffs submit that the application to remove the caveat raised the same considerations as an application for an interlocutory injunction and that, by analogy with the usual practices, it is appropriate to order that the costs be in the proceeding or, alternatively, be reserved. They argue that an order which requires the second plaintiff to bear the costs, without the parties’ rights having been finally determined, would be unjust if it turns out after trial that the interest relied on to sustain the caveat is not established.
- [8]The defendants accept that, because an application to set aside a caveat is regarded as being analogous to an application for an interlocutory injunction, costs will generally be decided by analogy as well. However, they submit that in this case, the questions analogous with an injunction application were decided by Davis J in the application for leave to lodge the caveat after an earlier caveat had been allowed to lapse. They argue that the proper analogy for the second plaintiff’s application to remove the caveat in this case is with an application to discharge an interlocutory injunction before trial. In other words, the second plaintiff’s arguments on the caveat removal application were advanced for the purpose of re-litigating the central question already determined by Davis J: whether or not the interest the second defendant claimed in the land should be protected by a caveat pending resolution of the parties’ disputes. The defendants further submit that, not only did the second plaintiff fail on each of the issues raised for determination on the caveat removal application, but that its arguments concerning unclean hands and adequacy of damages defied clearly established law.
Consideration
- [9]In my view, the appropriate order is that the costs of the caveat removal application should be the defendants’ costs in the proceeding.
- [10]If the defendants ultimately succeed in establishing the second defendant’s entitlement to specific performance of its option to purchase the land from the second plaintiff, they should be able to recover the costs of and incidental to the caveat removal application from the second plaintiff. That outcome would be just in circumstances where all the issues determined on the caveat removal application were resolved in the defendants’ favour.
- [11]If, on the other hand, the defendants do not ultimately succeed in establishing the second defendant’s interest in the land, I am persuaded that the matters identified by in the defendants’ submissions mean that it would still not be appropriate for them to have to pay the second plaintiff’s costs of the caveat removal application.
- [12]In those circumstances, the orders I will make are:
- The costs of the application filed on 3 November 2023 be the defendants’ costs in the proceeding.
- The plaintiffs pay the defendants’ costs of paragraph 3 of the application filed on 13 November 2023 to be assessed on the standard basis if not agreed.
Footnotes
[1]Recycling Developments Pty Ltd v Bespoke Recycling Industries Pty Ltd [2024] QSC 42.
[2]Rocky Point Holdings Pty Ltd v TEB Enterprises Pty Ltd [2023] QSC 20.
[3]Goodwin v Gilbert [2000] QSC 309, [15] and the cases cited therein.
[4]T&L Byrne Excavations Pty Ltd v Robinson [2021] QSC 279, [25].
[5]Walters v Perton (No 2) [2019] VSC 542, [14].
[6]Perdaman Chemicals and Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd (No 3) [2011] WASCA 203 (S), [11]; The Owners – Strata Plan No 87231 v 3A Composites GmbH (No 4) [2020] FCA 1573, [10].
[7]O'Keefe Nominees Pty Ltd v BP Australia (No 2) (1995) 55 FCR 391, 398F-G; AOZ23 v Commonwealth [2023] FCA 184, [25].
[8]Clements v Loel [2023] QSC 271, [14].