Adani Abbot Point Terminal Pty Ltd v Lake Vermont Resources Pty Ltd & Ors [2022] QCA 16

SUPREME COURT OF QUEENSLAND CITATION: Adani Abbot Point Terminal Pty Ltd v Lake Vermont Resources Pty Ltd & Ors [2022] QCA 16 PARTIES: ADANI ABBOT POINT TERMINAL PTY LTD ACN 149 298 206 (appellant) v LAKE VERMONT RESOURCES PTY LTD ACN 114 286 841 (first respondent) QCOAL PTY LTD ACN 010 911 234 (second respondent) BYERWEN COAL PTY LTD ACN 133 357 632 (third respondent) SONOMA MINE MANAGEMENT PTY LTD ACN 124 677 443 (fourth respondent) FILE NO/S: Appeal No 10300 of 2020 SC No 9440 of 2017 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal – Further Orders ORIGINATING COURT: Supreme Court at Brisbane – [2020] QSC 260 (Dalton J) DELIVERED ON: 15 February 2022 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers JUDGES: Fraser and McMurdo and Mullins JJA ORDERS: 1. The respondents pay 90 per cent of the appellant’s costs of and incidental to the proceeding in the Trial Division, including reserved costs if any, assessed on the standard basis. 2. The respondents pay 95 per cent of the appellant’s costs of and incidental to the proceeding in the Court of Appeal, including reserved costs if any, assessed on the standard basis. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellant sought payment of all of its costs – where on appeal the appellant was unsuccessful in disturbing one major determination of the trial judge – where at trial the appellant was unsuccessful on one other minor point – whether -- 1 of 3 -- 2 allowance should be made for the points on which the appellant did not succeed – whether any such allowance should be expressed as a percentage of the overall costs COUNSEL: B W Walker SC, L F Kelly QC, S Cooper QC with M F Johnston for the appellant S S W Couper QC, A C Stumer and D L Tay for the first respondent J D McKenna QC, with N J Derrington, for the second, third and fourth respondents SOLICITORS: Clayton Utz for the appellant DLA Piper for the first respondent Arnold Bloch Leibler for the second, third and fourth respondents [1] FRASER JA: I agree with the reasons for judgment of McMurdo JA and the orders proposed by his Honour. [2] McMURDO JA: This judgment deals with the costs of the appeal, determined by the Court’s judgment last year,1 and the costs of the proceeding in the Trial Division. [3] On any view, the appellant was substantially successful in the appeal and, consequently, the proceeding. Most of the time taken in the argument in this Court involved the questions of whether the appellant had engaged in unconscionable conduct and whether the trial judge’s assessment of damages for that conduct was erroneous. The arguments on those questions were extensive and thorough, as was to be expected given the complexity of the questions and the amounts of money at stake. [4] There was also an extensive and complex controversy concerning the interpretation and application of provisions of the user agreements which provided for handling charges, and that part of the appeal also occupied a substantial part of the three days of hearing in this Court. [5] There was a further issue, which was between the appellant and the fourth respondent (Sonoma), upon which the appellant was unsuccessful, as it had been at the trial. Relatively little time was occupied by this issue in the hearing of the appeal, reflecting the narrowness of the controversy. As the appellant’s submissions point out, the argument for Sonoma on this issue occupied only a page of the transcript, and only a very small part of the written submissions for the appellant and Sonoma were concerned with it. [6] The respondents submit that they were successful in that the orders numbered 8 and 9, made by the trial judge on 26 August 2020, were not disturbed. However that is immaterial for present purposes. They were orders granting leave to the first respondent to amend its counterclaims, and to Adani to amend its answer to the counterclaim, in relation to the unconscionability case. [7] Undoubtedly, very substantial costs were incurred by the parties in the preparation for this appeal, as well as in the presentation of the arguments over the three days of hearing. It is fair to assume that the time spent in the argument of a question in this 1 Adani Abbot Point Terminal Pty Limited v Lake Vermont Resources Pty Limited and Ors [2021] QCA 187 (the appeal judgment). -- 2 of 3 -- 3 Court would correspond with the proportion of the work done before the hearing. Consequently, nearly all of the costs of the appeal were incurred on issues on which the appellant succeeded. [8] In these circumstances, the appellant seeks an order for the payment of all of its costs of the appeal (upon the standard basis). In the alternative, it submits that if some allowance is to be made for the Sonoma issue, the appellant should have at least 95 per cent of its costs. [9] The respondents each submit that the appellant should have 90 per cent of its costs of the appeal. They point out that the appellant was unsuccessful in two of its arguments which challenged the trial judge’s assessment of damages. However that is an example of a party succeeding in obtaining the intended outcome without winning every point along the way. In such cases, where unpersuasive submissions have not occupied an inordinate amount of time, or are not said to have been frivolous or vexatious, there is usually no basis for depriving a successful party of any of its costs. [10] The Sonoma controversy, however, was a substantial one, in which the appellant was unsuccessful in disturbing the determination by the trial judge that from 1 July 2017, the appellant had been in breach of its user agreement with Sonoma. It is inappropriate that the appellant’s failure to disturb that conclusion should have no impact upon the orders for the costs of the appeal. [11] No party suggests that the outcome of the Sonoma controversy should affect the costs order only between the appellant and Sonoma. Further, the parties agree that if the appellant is not to be given the entirety of its costs, the practical and preferrable form of order is that the appellant should be given a percentage of its costs, rather than there being orders which would require an assessment of the several amounts incurred on particular questions. The appellant’s failure on the Sonoma question would be fairly recognised by the appellant being paid 95 per cent of its costs of the appeal. [12] There is then the question of the costs of the proceeding in the Trial Division. There was another controversy which the trial judge had to determine, which involved berthage and moorage charges, in which the appellant was unsuccessful. The controversy involving these charges occupied only two pages of a lengthy trial judgment. The controversy was largely one of the interpretation of cl 7.3(b)(i)(A) of the user agreements, together with the resolution of some factual questions. It is evident that it was controversy which occupied relatively little time at the trial and, it is to be inferred, in the work done before the trial. Nevertheless, some allowance should be made for it, and with the Sonoma question, this could be fairly achieved by an order that the appellant be given 90 per cent of its costs at first instance. Orders [13] The appropriate orders are as follows: 1. The respondents pay 90 per cent of the appellant’s costs of and incidental to the proceeding in the Trial Division, including reserved costs if any, assessed on the standard basis. 2. The respondents pay 95 per cent of the appellant’s costs of and incidental to the proceeding in the Court of Appeal, including reserved costs if any, assessed on the standard basis. [14] MULLINS JA: I agree with McMurdo JA. -- 3 of 3 --