D & L Events Pty Ltd v Opetaia (No 2) [2024] QSC 265

SUPREME COURT OF QUEENSLAND CITATION: D & L Events Pty Ltd v Opetaia (No 2) [2024] QSC 265 PARTIES: D & L EVENTS PTY LTD (plaintiff) v JAI OPETAIA (defendant) FILE NO/S: BS 2868 of 2023 DIVISION: Trial division PROCEEDING: Claim ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 6 November 2024 DELIVERED AT: Brisbane HEARING DATE: Determined on the papers. Plaintiff’s written submissions on costs filed 14 October 2024. Defendant’s written submissions on costs filed 25 October 2024 JUDGE: Cooper J ORDER: The plaintiff pay the defendant’s costs of and incidental to the proceeding (including reserved costs) to be assessed on the standard basis if not agreed. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where the plaintiff’s claim against the defendant was dismissed – where the plaintiff submits that it should be ordered to pay the defendant’s partial costs because the defendant raised matters in his defence and by counterclaim which were unsuccessful, abandoned during trial , or otherwise unnecessary to decide – where the plaintiff submitted that these matters added to the length and complexity of the trial and expanded the scope of disclosure – where the defendant submits that it succeeded on the central issue such that costs should follow the event – whether the plaintiff should only pay a portion of the defendant’s costs Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304, cited Courtney v Chalfen [2021] QCA 25, considered COUNSEL: TD Matthews KC with DV Ferraro for the plaintiff SA Baron Levi for the defendant -- 1 of 4 -- 2 SOLICITORS: Simmons & McCartney for the plaintiff Woods & Day for the defendant [1] On 11 October 2024, I gave judgment dismissing the plaintiff’s claim against the defendant for damages in lieu of specific performance of the Contract executed between the parties on 25 August 2019.1 The basis for that decision was my conclusion that, in seeking to compel the defendant to participate in boxing matches overseas which were not promoted by the plaintiff, the plaintiff repudiated the Contract. On that basis, the defendant validly terminated the Contract on 20 February 2023.2 [2] Pursuant to directions which were made when the Liability Judgment was delivered, the parties have filed written submissions on costs. Plaintiff’s submissions [3] The plaintiff submits that it should be ordered to pay seventy per cent (70%) of the defendant’s costs of the proceedings, including reserved costs, to be assessed on the standard basis. [4] The bases advanced for the exercise of the court’s costs discretion in favour of ordering payment of a portion of the defendant’s costs are that the defendant raised matters in his defence and by way of his counterclaim that: (a) he did not succeed on (as to which the plaintiff refers to the defence of repudiation based on the loss of the Fox Sports Contract,3 breach by the plaintiff of two (alternative) implied terms of the Contract,4 and misleading and deceptive conduct in two forms: (i) two express representations allegedly made by Mr Lonergan and (ii) misleading and deceptive conduct by silence);5 (b) he abandoned at a late stage during the trial (as to which the plaintiff refers to the abandonment during the defendant’s closing address of four express representations which were pleaded and opened as well as his pleaded defences of frustration and estoppel); or (c) were ultimately unnecessary for me to decide in dismissing the plaintiff’s claim (as to which the plaintiff refers to the defendant’s argument that clause 21.1(c) of the General Terms of the Contract was void as an unfair term pursuant to the Australian Consumer Law).6 [5] On the plaintiff’s submission, these matters added to the length and complexity of the trial and expanded the scope of disclosure. 1 D & L Events Pty Ltd v Opetaia [2024] QSC 245 (Liability Judgment). In this judgment I have used the same defined terms which appear in the Liability Judgment. 2 Liability Judgment, [99]-[101]. 3 Liability Judgment, [72]-[86]. 4 Liability Judgment, [107]-[114]. 5 Liability Judgment, [119]-[140]. 6 Liability Judgment, [115]. -- 2 of 4 -- 3 [6] The plaintiff accepts that, for the purposes of making an order as to costs, where there are multiple issues in a case the court generally does not differentiate between the issues on which a party was successful and those on which it failed in exercising the discretion in respect of costs. However, the plaintiff submits that there is an exception to this general rule in circumstances where an issue or a group of issues are clearly separable.7 [7] In this regard, the plaintiff submits that the plaintiff’s allegation of implied terms and the relief he sought under the Australian Consumer Law were separable from the balance of the determination of the plaintiff’s claim. Defendant’s submissions [8] The defendant submits that the plaintiff’s claim, as initially advanced, was to compel performance of the Contract. The central issue in determining the claim was whether the Contract remained on foot after the defendant’s purported termination. The defendant succeeded on that issue. The fact that some of his arguments (directed to alternative pathways to termination) were not accepted should not detract from his success in circumstances where those arguments were closely related to the successful argument, both in terms of the factual substratum and the substantive outcome. [9] Accordingly, the defendant submits that costs should follow the event. Having been wholly successful in defending the plaintiff’s claim he should be granted an order for all his costs (including reserved costs) to be assessed on the standard basis. That general rule should only be departed from in special or exceptional circumstances,8 and such circumstances are not present in this case. Principles [10] In Courtney v Chalfen, the Court of Appeal summarised the relevant principles as follows:9 “[4] The general rule is that costs follow the event and that should only be departed upon in the event of special or exceptional circumstances. The underlying rationale of that approach is that costs are not awarded to punish an unsuccessful party, but as a means of indemnifying the successful party. [5] This Court has endorsed the principles that: (i) ordinarily costs follow the event; (ii) costs can be awarded under r 684 UCPR on discrete issues if they are definable and severable and they occupied a substantial proportion of the trial or hearing; (iii) there must be special or exceptional circumstances to warrant depriving a successful party of its costs; and (iv) the mere fact that the successful party has been unsuccessful on some issues will ordinarily not be sufficient to do so.” 7 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304, [38]. 8 Courtney v Chalfen [2021] QCA 25, [4] 9 Ibid, [4]-[5] (citations omitted). -- 3 of 4 -- 4 Consideration [11] I am not persuaded that the matters raised by the plaintiff are sufficient to warrant a departure from the general rule in favour of an order that it should pay only a portion of the costs of the successful defendant. [12] I accept the defendant’s submission that the determination of alternative arguments in the plaintiff’s favour, which I did not have to decide but did so in case the matter goes further, should not detract from his complete success in resisting the plaintiff’s claim for relief. This was not a case where a plaintiff has succeeded in some claims against the defendant and failed in others. The defendant’s success was, in truth, complete success. He was entitled to advance reasonable arguments to establish his entitlement to terminate the Contract and should be indemnified for the costs associated with that, not simply the costs of the arguments which ultimately succeeded. [13] That is particularly so in this case where the various arguments directed towards the defendant’s entitlement to terminate were closely related and involved an overlap of evidence and argument. [14] In this respect, I accept the defendant’s submission that the repudiation arguments and the implied term arguments all concerned the construction of the Contract. They required consideration of evidence of the commercial context in which the Contract was entered into, the impact which the non-renewal of the Fox Sports Contract had upon the plaintiff’s practical ability to promote the defendant, and the course which the plaintiff proposed for the defendant’s boxing career after it lost the broadcasting rights with Fox Sports. [15] The evidence and argument concerning the misleading and deceptive conduct argument concerned the existence of the broadcast rights under the Fox Sports Contract and overlapped to some degree with the evidence of the commercial context in which the parties entered into the Contract. I am not persuaded that this issue was sufficiently definable and severable from the balance of the arguments, or that it occupied such a substantial proportion of the trial, that it is appropriate to reduce the amount of the defendant’s costs to be paid by the plaintiff. [16] In the circumstances of this case the general rule that costs follow the event should apply. [17] I order that the plaintiff pay the defendant’s costs of and incidental to the proceeding (including reserved costs) to be assessed on the standard basis if not agreed. -- 4 of 4 --