Denjim Pty Ltd v National Gold Pty Ltd; Denjim Pty Ltd v AU Gold Pty Ltd [2023] QSC 18

SUPREME COURT OF QUEENSLAND CITATION: Denjim Pty Ltd v National Gold Pty Ltd; Denjim Pty Ltd v AU Gold Pty Ltd [2023] QSC 18 PARTIES: DENJIM PTY LTD ACN 010 066 841 (plaintiff) v NATIONAL GOLD PTY LTD ACN 631 939 985 (in proceeding 4508/21) (defendant) AND AU GOLD PTY LTD ACN 631 939 878 (in proceeding 4509/21) (defendant) FILE NO/S: BS4508/21 and BS4509/21 DIVISION: Trial Division PROCEEDING: Civil ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: 15 February 2023 DELIVERED AT: Brisbane HEARING DATE: Further submissions made by the parties on 17 January 2023 JUDGE: Brown J ORDER: The Orders of the Court are in each of BS4508/21 and BS 4509/21 respectively that: 1. The costs of the application to withdraw admissions the subject of paragraph 5 of the application filed 24 October 2022 and paragraph 5 of the Amended Application filed 28 November 2022 be the plaintiff and defendants’ costs in the proceedings; 2. Save for paragraph 1, the costs of the plaintiff, Ashby Mining Limited (formerly known as AMD Resources Limited), AMDR Operations Pty Ltd, National Gold Pty Ltd and AU Gold Pty Ltd of the application filed 24 October 2022 and the amended -- 1 of 6 -- 2 application filed 28 November 2022 up until 11 November 2022 be costs in the proceedings; 3. The plaintiff, Ashby Mining Limited (formerly known as AMD Resources Limited) and AMDR Operations Pty Ltd jointly and severally pay the defendants’ costs of the application filed 24 October 2022 and the amended application filed 28 November 2022 incurred after 11 November 2022 to be agreed or assessed; 4. The defendants pay the costs of the plaintiff thrown away as a result of the amendments to the defences and counterclaims for which leave was given in order 3 of the Court’s orders made on 20 December 2022; 5. Until further order, pages 83 to 119 and 126 to 175 of Exhibit MD-2 of the Affidavit of Maroun Antione Draybi sworn on 24 October 2022 be sealed in an envelope on the Supreme Court file and marked “Not to be Opened Unless By Order of the Court”. CATCHWORDS: PRACTICE AND PROCEDURE – COSTS – where defendants were successful in their applications for leave to amend counterclaim and as to joinder – where the defendants contend that costs should follow the event – where the plaintiff says that costs should not follow the event because the grant of leave to amend and order for joinder were indulgences granted to the defendants – where the non-parties contend that the defendants should pay their costs. COUNSEL: R De Luchi for the plaintiffs D Piggott KC with A O’Brien for the defendants M Harris for the non parties SOLICITORS: Ashurst for the plaintiffs Centurian Lawyers for the defendants Carbone Lawyers for the non parties -- 2 of 6 -- 3 [1] On 20 December 2022 the defendants, the Gold parties, were successful in obtaining orders for leave to amend their counterclaim and for the joinder of parties referred to as the AMD parties in the reasons, who I will now refer to as the Ashby parties1 in light of changes to the corporate name. I made directions for submissions to be made as to costs and also requested the Ashby parties provide me with a proposed order regarding confidential material in respect of which it was agreed at the hearing that orders should be made. [2] The Gold parties contend that given they were successful in their applications to amend and as to joinder, costs should follow the event and their costs of those applications should be paid jointly and severally by Denjim and the Ashby parties. In the alternative, the Gold parties contend that they should at least be awarded 50 percent of their costs to reflect the impact of Denjim and the Ashby parties’ opposition on the scope of the applications. As to the application to withdraw admissions, the Gold parties contend that each party should bear their own costs. [3] The plaintiff, Denjim, contends that notwithstanding the defendant was successful in its application to join the Ashby parties, and in obtaining leave to amend its counterclaim, the appropriate order should be that the costs of the applications be costs in the proceedings. In that regard, Denjim states that although the defendants were successful, costs should not follow the event. This is because leave and the order for joinder were indulgences granted to the defendants in circumstances where they were not entitled to serve the counterclaim on the third parties as the time for service under r 178(2) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) had lapsed. Denjim also seeks an order that the defendants pay the plaintiff’s costs of the amendments thrown away consistent with r 386 of the UCPR and in the interests of clarity. [4] The Ashby parties contend that the defendants should pay their costs on the basis that it was appropriate for the Ashby parties to raise legal and practical issues which would affect all the parties’ resources and the Court’s resources, given Denjim’s objection to the delay that the joinder would cause and that the defendants were granted an 1 The second and third defendants to the counterclaim. -- 3 of 6 -- 4 indulgence where the joinder and leave applications were brought outside the time permitted under the UCPR. [5] It is uncontentious that the defendants had to appear before the Court to seek leave for joinder of the Ashby parties and to serve an amended counterclaim which included claims against the Ashby parties. Had there been no opposition to that application, it could have been dealt with on the applications list. Given the opposition to the application in each proceeding, Freeburn J ordered on 11 November 2022 that the applications be heard on the civil list for a day. The hearing before me occupied most of the day. [6] There was considerable opposition by Denjim and the Ashby parties to the grant of leave. Although Denjim did not seek to oppose the other amendments to the counterclaim insofar as they affected Denjim only, they did oppose the joinder of the Ashby parties and the amendment of the counterclaims to raise claims in relation to the Ashby parties. Denjim and the Ashby parties raised various case management considerations and alleged delay by the defendants. Denjim, argued that the requirements of r 178 of the UCPR were not satisfied, while the Ashby parties argued the joinder was premature because the defendants did not have enforceable rights under any interest in the relevant tenements in order to have standing to make a claim against the Ashby parties. [7] As to the claims made against the Ashby parties, the defendant contends that the applications were brought outside the prescribed time limits under the UCPR due to matters beyond the Gold parties’ control, due to the entry into the Tribute Mining Agreement (“TMA”) by Denjim and the Ashby parties. Thus, the Gold parties submit they were not seeking an indulgence from the Court as a result of their own delays. That is borne out in part by the facts, although there was some delay on the part of the Gold parties in acting upon the advice that the parties had entered into the TMA. [8] Both Denjim and the Ashby parties were unsuccessful in their opposition to the joinder application and leave to amend the counterclaim to include claims against the Ashby parties. In my view, the opposition by the Ashby parties and Denjim did give rise to additional costs being incurred by the Gold parties, including by requiring an extended hearing to determine the applications. While the Gold parties did have to come before the Court in order to join the Ashby parties and seek leave to file an -- 4 of 6 -- 5 amended counterclaim against the Ashby parties, there is no reason why after the Gold parties had filed and served the material in support of the applications including the amended counterclaims which were required to be filed by them that costs once the opposition of the other parties was to be the subject of the hearing should not otherwise follow the event given their success in obtaining orders in terms of the applications. [9] Given the entry into the TMA arose after the Gold parties had filed their defences and counterclaims in the respective proceedings BS4508/21 and BS4509/21, and the need of the Gold parties to make the applications, I consider that the appropriate order is that the costs incurred by all parties to the applications including the Ashby parties up until 11 November 2022 be costs in the proceedings. On 11 November 2022 Freeburn J ordered the matter be placed on the civil list and the parties subsequently filed material in opposition and extensive submissions in support of their respective positions. Given the opposition of Denjim and the Ashby parties to the applications were not successful, costs should follow the event after that date and both Denjim and the Ashby parties should be ordered to pay jointly and severally the Gold parties’ costs of the applications. The Ashby parties were not in a significantly different position from Denjim. They chose to raise arguments in opposition raising additional arguments to those raised by the Denjim parties in relation to which they were unsuccessful. There is no basis upon which they should not be liable for the costs with Denjim nor have their costs paid by the Gold parties. [10] As to the withdrawal of the admissions, that was an insignificant part of the argument to which there was no real opposition. It is not a matter which concerned the Ashby parties. The withdrawal of the admissions required an application to be made to the Court. In my view in relation to that application the costs should be Denjim and the Gold parties’ costs in the proceedings. [11] Denjim also seeks an order that they be paid their costs of the amendments thrown away. It is generally unnecessary to make that order, as was recognised by Jackson J in Campbell v TL Clacher No. 2 Pty Ltd (No 2) even though his Honour made the order for the sake of clarity.2 The plaintiffs will be entitled to the costs thrown away as a result of the defendants’ amended pleadings as a result of the operation of r 386 2 [2020] QSC 35 at [46]. -- 5 of 6 -- 6 of the UCPR. Given r 386, an order is not required and should not be generally sought by parties. I will, however, make the order for the sake of clarity for the reasons outlined by the defendants. [12] While I will make the confidentiality order in the terms sought by the Ashby parties there is no basis for ordering reserve costs in respect of the application which was made instanta at the hearing. [13] Given the applications in proceedings BS4508/21 and BS4509/21 were essentially the same the orders will be the same in each proceeding. [14] The Orders of the Court will be that in each of BS4508/21 and BS4509/21 respectively that: 1. The costs of the application to withdraw admissions the subject of paragraph 5 of the application filed 24 October 2022 and paragraph 5 of the Amended Application filed 28 November 2022 be the plaintiff and defendants’ costs in the proceedings; 2. Save for paragraph 1, the costs of the plaintiff, Ashby Mining Limited (formerly known as AMD Resources Limited), AMDR Operations Pty Ltd, National Gold Pty Ltd and AU Gold Pty Ltd of the application filed 24 October 2022 and the amended application filed 28 November 2022 up until 11 November 2022 be costs in the proceedings; 3. The plaintiff, Ashby Mining Limited (formerly known as AMD Resources Limited) and AMDR Operations Pty Ltd jointly and severally pay the defendants’ costs of the application filed 24 October 2022 and the amended application filed 28 November 2022 incurred after 11 November 2022 to be agreed or assessed; 4. The defendants pay the costs of the plaintiff thrown away as a result of the amendments to the defences and counterclaims for which leave was given in order 3 of the Court’s orders made on 20 December 2022; 5. Until further order, pages 83 to 119 and 126 to 175 of Exhibit MD-2 of the Affidavit of Maroun Antione Draybi sworn on 24 October 2022 be sealed in an envelope on the Supreme Court file and marked “Not to be Opened Unless By Order of the Court”. -- 6 of 6 --