Baskerville v Skene (No. 2) [2023] QSC 58

SUPREME COURT OF QUEENSLAND CITATION: Baskerville v Skene (No. 2) [2023] QSC 58 PARTIES: CHRISTOPHER JOHN BASKERVILLE IN HIS CAPACITY AS LIQUIDATOR OF GOLDSKY ACCESS FUND PTY LTD ACN 617 800 941 (IN LIQUIDATION) & ORS AS DESCRIBED IN THE SCHEDULE OF PARTIES (first plaintiff) v MATTHEW PETER SKENE & ORS AS DESCRIBED IN THE SCHEDULE OF PARTIES (first defendant) FILE NO/S: BS6402 of 2021 DIVISION: Trial division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 27 March 2023 DELIVERED AT: Brisbane HEARING DATE: 2 February 2023 JUDGE: Freeburn J ORDER: The defendant/applicants pay the plaintiff/respondent’s costs of the application. CATCHWORDS: PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – where the defendant/applicant applies for the costs to be each parties’ costs in the proceeding – whether the costs should be each parties’ costs in the proceeding or whether the general principle that costs ought to follow the event be applied COUNSEL: D Savage KC and L Copley (plaintiffs/respondents) JW Peden, KC and SC Russell (defendants/applicants) -- 1 of 3 -- 2 SOLICITORS: Thynne + Macartney for the plaintiffs/respondents Mills Oakley for the First to Fifth Defendants/Applicants REASONS [1] An application was brought before the court on 2 February 2023 by the defendants to strike out a statement of claim pursuant to rule 171 of the Uniform Civil Procedure Rules 1999 (UCPR). [2] On 24 February 2023, I delivered reasons dismissing the application.1 The parties have now provided written submissions on the costs for the application. [3] In this application, there were two broad issues before the court. The first was, essentially, a complaint that the statement of claim was flawed because it pursued an unfair preference claim on behalf of the Goldsky Global Access Fund (the Fund) when the preference provisions of the Corporations Act 2001 (Cth) apply only to unfair preferences given by companies. [4] On that issue, it seems to me that the pleading might have been clearer, but the intermingling of the allegations meant that the arguments of both sides were fairly arguable. [5] The second was an argument that the Full Federal Court’s decision in NAB v Norman compelled the conclusion that the Fund here was not capable of registration.2 On that point the applicant/defendants lost. [6] How one assesses that issue depends on your view of the case. I was not persuaded there was much in the point, and it may well be that the relevant passage was taken out of its context. [7] The defendant/applicants invite me to reserve the costs of this application, or to make the costs each parties’ costs in the proceeding. [8] I am not persuaded to do that. If the only point argued was the first point, there would be a fair argument that the costs should be reserved. But, given that the plaintiffs 1 Baskerville v Skene [2023] QSC 31. 2 (2009) 180 FCR 243. -- 2 of 3 -- 3 succeeded in both claims, the best course is to give effect to the general principle that costs ought to follow the event.3 [9] The applicants will be ordered to pay the respondent’s costs on the standard basis. 3 UCPR r 681(1). -- 3 of 3 --