Adani Mining Pty Ltd v Pennings (No 2) [2025] QSC 139

SUPREME COURT OF QUEENSLAND CITATION: Adani Mining Pty Ltd v Pennings (No 2) [2025] QSC 139 ADANI MINING PTY LTD ACN 145 555 205 (First Plaintiff) AND CARMICHAEL RAIL NETWORK PTY LTD AS TRUSTEE FOR THE CHARMICHAEL RAIL NETWORK TRUST ACN 601 738 685 (Second Plaintiff) v BENJAMIN WILLIAM DEVENISH PENNINGS (Defendant) FILE NO: BS 9186 of 2020 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 13 June 2025 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers JUDGE: Brown J ORDER: The plaintiffs pay 60 % of the defendant’s costs of and incidental to the defendant’s application filed 9 October 2023. CATCHWORDS: PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – OTHER CASES – FAILURE IN PORTION OF A CASE – where the application before the Court sought relief in respect of three matters – where parties had varying levels of success – where the defendant was partially successful in obtaining the relief sought– whether costs be apportioned Uniform Civil Procedure Rules 1999 (Qld), r 681, r 684 Aurizon Network Pty Ltd v Glencore Coal Queensland Pty Ltd & Ors [2019] QSC 249, cited J Wright Enterprises Pty Ltd (In Liquidation) v Port Ballidu Pty Ltd (No. 2) [2010] QSC 214, cited Vision Eye Institute Ltd & Anor v Kitchen (No 3) [2015] QSC 164, cited -- 1 of 4 -- 2 COUNSEL: D Pyle with M Windsor, for the plaintiffs C Schneider, for the defendant SOLICITORS: Dowd + Wilson for the plaintiffs Marque Lawyers for the defendant [1] BROWN J: The Court heard an application made by the defendant, Mr Pennings, in relation to this matter which occurred over three days. The application which the Court had to determine was with respect to: (a) an application by the defendant to permanently stay proceedings or alternatively strike out in whole or in part of the plaintiffs’ further amended statement of claim (FASOC) (FASOC matters); (b) an order to set aside a costs orders or stay the enforcement of that costs order (costs matter); and (c) an order by Justice Martin on 11 September 2020 made by this Court in favour of the plaintiffs to release an injunction ordered restraining the defendant (injunction matter). [2] The plaintiffs opposed the relief sought by the defendant. The Court delivered its decision on 6 December 2024. The defendant was partially successful in obtaining the relief sought in his application. The defendant contends he is entitled to all of his costs. [3] In their submissions as to costs, the plaintiffs contend that the Court’s discretion should be exercised in their favour and that the Court should order that the defendant pay the plaintiffs 30 per cent of their costs or alternatively make no order as to costs. That is submitted on the basis that the defendant failed to achieve his primary objective to have the proceedings permanently stayed or struck out as an abuse of process, the injunction released and costs orders set aside. The plaintiffs estimate that the issues upon which the defendant enjoyed success would have taken significantly less time and could have been addressed in a single day rather than the three days spent. In relation to the first day I consider both parties spent time on issues that ultimately delayed the progress of the hearing. [4] The defendant claims he is entitled to the costs of his application on the basis he was generally successful, at least in obtaining the alternative relief it sought in relation to the strike out of the FASOC and staying the costs order. In the alternative he seeks eighty per cent of his costs. In relation to seeking the release of the injunction, while not successful, the defendant contends that the Court had made some adverse comments in relation to the conduct of the plaintiffs. The defendant also contends that the time spent on the issue of the injunction was limited. [5] Pursuant to r 681(1) of the Uniform Civil Procedure Rules 1999 (Qld) the costs of an application in a proceeding are in the discretion of the court, but follow the event unless the court otherwise orders. The Court may, pursuant to r 684(1), make orders in relation to a particular question in or particular part of a proceeding. In that respect 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 under r 684(2). -- 2 of 4 -- 3 [6] The fact that a party is not successful on all issues does not mean it is disentitled from a costs order following the event.1 The Court has, in at least one case of this Court, cautioned that the use of r 684 should be limited to exceptional cases.2 [7] The flexibility of the words used in r 681 (1) and r 684 of the UCPR was discussed Jackson J in Aurizon Network Pty Ltd v Glencore Coal Queensland Pty Ltd & Ors3 and the width of the power available where each party can claim some success. In that regard his Honour referred to Day v Humphrey & Ors4 where the Court acknowledged that “Costs can also be awarded on a differential basis depending on the degree of success and whether success was only on issues that occupied an identifiable proportion of time.” [8] The Court may, in exercising its discretion, take an “impressionistic and pragmatic view as to what were the real heads of controversy in the litigation” and should “strive to avoid assessment of costs in a complicated form, according to issues in a technical sense”.5 Submissions of both parties support the Court adopting a pragmatic approach in determining the appropriate costs order. [9] I consider that the plaintiffs’ estimate as to the division of time spent by the parties in respect of those issues, on which each enjoyed some success is not an appropriate basis to determine costs in the present case. The approach fails to account for how the arguments evolved and the intersecting arguments in respect of the FASOC deficiencies and permanent stay for abuse of process and the injunction overlapped, such that the time spent on arguments cannot be neatly divided. Nor does the fact that the plaintiffs successfully defended the extent of the relief sought by the defendant properly account for the defendant’s level of success insofar as he obtained the relief sought in the alternative. [10] In the present case the defendant enjoyed significant success in the FASOC matters and the costs matters although he did not obtain the primary relief he sought in either application. In my view the plaintiffs should pay the defendant a portion of his costs but not all of his costs. Overall he enjoyed a level of success in relation to his application with respect to the pleading issues in respect of the FASOC matter and the costs matter. Account must however be made for the fact that, although inter- related, significant time was spent arguing that the proceedings should be permanently stayed for an abuse of process or that liberty to replead should not be given. The defendant was unsuccessful in that regard. Further, the Court did not accept that it should set aside the costs order on the basis of the errors in the costs statement or the plaintiffs’ conduct, which raised somewhat novel arguments, although the plaintiffs were successful insofar as costs orders were stayed until determination of the proceedings. [11] The greater relief that the defendant sought for the FASOC matters and costs matters which was not granted by the Court raised complex issues additional to those for which relief was granted. Nor was the defendant successful in seeking to have the 1 Courtney v Chalfen [2021] QCA 25 at [5]; Alborn v Stephens [2010] QCA 58 at [7]-[8]. 2 J Wright Enterprises Pty Ltd (In Liquidation) v Port Ballidu Pty Ltd (No. 2) [2010] QSC 214 at [16]. 3 [2019] QSC 249 at [9]. 4 [2018] QCA 321 [9]. 5 Vision Eye Institute Ltd & Anor v Kitchen (No 3) [2015] QSC 164 at [13]. -- 3 of 4 -- 4 injunction set aside. That matter however was not as significant as the other issues in respect of which the defendant enjoyed success. [12] In the circumstances, a “pragmatic and impressionistic approach” is called for by the Court which accounts for the measure of success enjoyed by the defendant on the application but also accounts for the time spent on issues upon which he was not successful and where the plaintiffs successfully persuaded the Court that the greater relief sought by the defendant was not justified in the FASOC matters and costs matter and that the injunction should be maintained. [13] In my view the appropriate order to reflect the degree of success of the defendant and account for the matters on which he was not successful is that the plaintiffs should pay 60 per cent of the defendant’s costs of and incidental to the defendant’s application on the standard basis. Order [14] The plaintiffs pay 60 % of the defendant’s costs of and incidental to the defendant’s application filed 9 October 2023. -- 4 of 4 --