Cook v Alderson (No.2)[2025] QSC 51

SUPREME COURT OF QUEENSLAND

1. [1]
   I delivered judgment in the primary claim on 20 February 2025.^[1]  This is the costs judgment.
2. [2]
   The orders which I made in the primary claim were as follows:

1. “1.The plaintiff is entitled to be repaid by the defendants the amounts of $110,116.41 and $160,804.42 plus pre-judgment interest as set out at [90] of these reasons, a sum of $29,710, all secured by an equitable charge over the property located at 18 Doherty Court, Ormeau.
2. 2.Further the plaintiff is entitled to equitable compensation in the sum of $120,000 also secured by an equitable charge over the property located at 18 Doherty Court, Ormeau.
3. 3.There will be judgment for the plaintiff therefore in the sum of $420,630.83.
4. 4.I will hear the parties as to costs.”

3. [3]
   The plaintiff was self-represented throughout and incurred no legal costs.  She does not apply for a costs order against the defendants.
4. [4]
   The defendants, who were ordered to pay $420,630.83, seek their costs on the standard basis. It is submitted by the defendants that this applies the general rule that unless the court otherwise orders, costs follow the event.^[2]
5. [5]
   The defendants do not seek their costs on the basis that the plaintiff has failed to beat an offer of settlement which the defendants made. 
6. [6]
   The defendants contend that it is not to the point that the plaintiff has obtained an overall sum higher than the defendants accepted she was entitled to be repaid.  Rather, they contend that the relevant question is, “what were the separate issues or ‘units of litigation’ that were in dispute and which parties succeeded or failed in respect of them?” 
7. [7]
   For this submission the defendants rely upon Speets Investment Pty Ltd v Bencol Pty Ltd (No 2)^[3] as follows:

1. [13]
   The word “event” in the general rule 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: Theiss v TCN Channel 9 Pty Limited (No 5) [1994] 1 Qd R 156 at 207-8; Interchase Corporation Limited (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 3) [2003] 1 Qd R 26 at 60-1 [82]-[84]; Sequel Drill & Blast Pty Ltd v Whitsunday Crushers Pty Ltd (No 2) at [3]-[7]; Allianz Australia Insurance Ltd v Swainson at [4]-[5].
2. [14]
   It is important to recognise, however, that it does not follow from the foregoing that the application of the general rule should usually lead to costs orders which reflect different results on separate events or issues.  The Court is given a broad discretion and is specifically empowered to determine that some other order is more appropriate.
3. [15]
   In practice, courts often take the approach of identifying heads of controversy or “units of litigation” (rather than what might technically be regarded as issues on the pleadings) regarding success or failure on the head of controversy or unit of litigation as the criterion for awarding costs: see Thiess v TCN Channel 9 Pty Limited (No 5) at 207-8 and Chief Executive, Department of Transport and Main Roads v Cidneo Pty Ltd [2015] QCA 168 at [1].

8. [8]
   The defendants contend that there were effectively four issues of controversy or “units of litigation” and that the plaintiff substantially failed in respect of them.
9. [9]
   Before analysing this submission, it is worthwhile to remember that the plaintiff was self-represented throughout the entirety of this litigation.  To the extent that her pleading raised issues of controversy, or units of litigation, those issues were not identified in the way in which they would likely have been presented had she been so represented.  As such, during the case management of the proceeding, the court made numerous directions so as to identify the real issues of controversy in the litigation.  Those directions succeeded in narrowing the matter to the true issues which the court was called upon to decide at the hearing.  To the extent that the defendants point in their costs submissions to the plaintiff’s approach on the pleadings, those submissions ignore that the matter was conducted less by reference to the pleadings, and more by reference to the list of agreed issues, and the list of matters in dispute, which were actually litigated at the hearing.
10. [10]
    In truth, there was one real “unit of litigation”, and that was the value of the compensation to be paid to the plaintiff by the defendants. On that, I awarded her $420,630.83, a sum greater than any amount conceded by the defendants.
11. [11]
    The defendants, however, contend that the following were the issues of controversy in the proceeding.
12. [12]
    First, whether the plaintiff was entitled to compensation assessed on the basis that she should be “re-homed to the same standard of living” she had prior to entering into the property arrangement.  As to this, the defendants claim that her right to compensation was articulated by reference to paragraph [7] of the amended statement of claim, and that the plaintiff failed in that contention. It is correct that I did not order an amount that would entitle her to purchase an equivalent property to the home she had prior to the agreement. However, I do not see that the first issue (as so described by the defendants) was in fact discreetly separate from the fourth issue (as so described by the defendants) being the compensation for the life interest.  The matters relevant to the first and fourth so described issues, were in fact intimately connected.  Specifically in relation to the question, so described as the fourth issue, I found against the defendants’ contentions entirely, compensating the plaintiff for the loss of the life interest taking into account those very issues which the defendants described as the first issue.  I therefore do not accept the underlying premise of the submission that the plaintiff has failed on the first issue.   
13. [13]
    As to the so described second issue, whether the plaintiff was entitled to an order evicting the defendants from the property, the question of eviction was not raised by the plaintiff during the hearing. She sought no orders or relief of that type before me. Whilst it is true that the plaintiff identified in her claim that she sought an order that the defendants be evicted from the property, the matter was not in any way conducted on that basis before me. Her son was very briefly cross examined on the issue of eviction, but the plaintiff herself raised no such issue at the trial, asked for no orders and was not cross-examined in relation to it.
14. [14]
    In any event, the defendants accept that the issue did not take up a substantial amount of time at trial because, it is said, the plaintiff effectively capitulated on it and did not actively pursue it, although she did not formally abandon it.
15. [15]
    It is a misdescription to say that the issue did not take up “a substantial amount of time at trial” because in truth it did not occupy any time at trial.  It simply was not an issue which was argued before me.  It had been abandoned, effectively, by the identification of the list of real issues that were in dispute.  There was no evidence called by the plaintiff in relation to this issue and no submissions were made by her in relation to it.  There were simply no costs, in my view, which were reasonably incurred on a standard basis in relation to that issue.
16. [16]
    As to the so described third issue, being whether the elements of a constructive trust were satisfied and whether the plaintiff was entitled to a remedy calculated on the basis of the return of her contributions, the defendants suggest that this issue was only raised by the defendants, and only in their counterclaim.  Because the court accepted the defendants’ submissions in relation to the applicable principles then, the defendants contend that they “succeeded” on the third issue.
17. [17]
    It is true that the defendants properly articulated the relevant principles in relation to the so described third issue.  However, it could hardly be said that the defendants succeeded on this issue, as submitted, given that the defendants contended there ought to be no compensation as a consequence of the application of those principles.
18. [18]
    In fact, in accepting the application of those principles, the court then looked at the circumstances of the case to decide the way in which the plaintiff’s equity ought to be satisfied.  I expressly rejected the defendants’ approach to the calculation of that equity – therefore it cannot be said that the defendants succeeded on that issue. 
19. [19]
    In the circumstances, I reject the submission that the defendants had “substantially succeeded” and that the plaintiff should be ordered to pay their costs.
20. [20]
    Even however, had I accepted the defendants’ characterisation of the issues (which I do not) or their success in relation to them (which I also do not), I would not have made an order that the plaintiff pay the defendants’ costs, in the exercise of my discretion, and consistently with Speets Investment..  That is because the real issue which the court was called on to decide was the value of the proper compensation to the plaintiff arising out of the unilateral termination of the property arrangement by the defendants.  That was in truth the real “unit of litigation” that was before me, not those which were identified by the defendants in their costs’ submissions. 
21. [21]
    Whilst I accept (as submitted by the defendants) that the solicitors and counsel for the defendants acted sensibly and cooperatively both during the conduct of the litigation, and the hearing, that is what the court expects of solicitors and counsel. Indeed, it is their duty to do so. Clients, such as the defendants, are not rewarded by favourable costs orders for their legal representatives acting as they ought. 
22. [22]
    Furthermore, a costs order in this case, would serve as a punishment to a successful plaintiff, in circumstances where such a punishment would be entirely unjustified. 
23. [23]
    Had the plaintiff herself incurred legal costs, I would have ordered that the defendants pay them.  She did not.  In the circumstances the appropriate order is that there be no order as to costs.