D.J. & M.A. Hose Pty Ltd ATF The Hose Family Trust ACN 010 999 210 v Wide Bay Insurance Broking Pty Ltd ATF The Wide Bay Business Trust ACN 130 391 301 [2022] QSC 223

SUPREME COURT OF QUEENSLAND CITATION: D.J. & M.A. Hose Pty Ltd ATF The Hose Family Trust ACN 010 999 210 v Wide Bay Insurance Broking Pty Ltd ATF The Wide Bay Business Trust ACN 130 391 301 [2022] QSC 223 PARTIES: D.J. & M.A. Hose Pty Ltd ATF The Hose Family Trust ACN 010 999 210 (Plaintiff) V Wide Bay Insurance Broking Pty Ltd ATF The Wide Bay Business Trust ACN 130 391 301 (Defendant) FILE NO/S: BS No 12169 of 2021 DIVISION: Trial Division PROCEEDING: Applications ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 19 October 2022 DELIVERED AT: Brisbane HEARING DATE: 26 July 2022 JUDGE: Hindman J ORDERS: The costs of the plaintiff’s application filed 19 May 2022, the defendant’s application filed 13 July 2022 and the plaintiff’s oral application made by leave on 26 July 2022 are all costs in the proceeding. CATCHWORDS: CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – GENERALLY – FORM OF PLEADING – COSTS – where the plaintiff’s strike out application and the defendant’s withdrawal of admissions application had been previously determined – where the parties seek an assessment of costs based on the outcome of individual issues – how the costs discretion ought be exercised. COUNSEL: K Holyoak for the plaintiff M Daley for the defendant SOLICITORS: Troy Legal for the plaintiff Gilchrist Connell for the defendant -- 1 of 5 -- 2 Introduction [1] By the earlier decision made in this proceeding ([2022] QSC 191) the plaintiff’s strike out application and the defendant’s withdrawal of admissions application were determined. Other parts of the two filed applications did not require determination by the court as the parties had reached agreement. [2] The parties have not been able to agree as to the cost orders that should be made arising from the two filed applications and the oral application. These reasons deal with the costs of all three applications. [3] The competing positions of the parties are: (a) plaintiff: (i) the costs relating to paragraphs 1 to 5 and 8 of the plaintiff’s filed application be costs in the proceeding; (ii) the plaintiff’s costs relating to paragraph 6 of the plaintiff’s filed application be paid by the defendant fixed in the sum of $6,500; (iii) the costs relating to the plaintiff’s oral application be costs in the proceeding; (iv) the plaintiff’s costs of the defendant’s application be paid by the defendant, (b) defendant: (i) [no order proposed in relation to the costs relating to paragraphs 1 to 5 and 8 of the plaintiff’s filed application]; (ii) the defendant’s costs relating to paragraph 6 of the plaintiff’s filed application be paid by the plaintiff; (iii) the defendant’s costs relating to the plaintiff’s oral application be paid by the plaintiff; (iv) no order as to the costs of the defendant’s application. Paragraphs 1 to 5 and 8 of the plaintiff’s filed application [4] Paragraphs 1 to 5 of the plaintiff’s filed application concerned the substitution of the plaintiff and associated steps. It was consented to by the defendant. Little cost would have been associated with this part of the plaintiff’s filed application. Regardless, in the ordinary course for this type of application (where the plaintiff is required to make an application through no -- 2 of 5 -- 3 fault of the defendant, putting the defendant to some expense) it would be common that the plaintiff would bear the defendant’s costs. Although in this case the defendant does not seek any costs order relating to this part of the plaintiff’s filed application. [5] Paragraph 8 of the plaintiff’s filed application concerned directions. There is scope to argue that the need for directions arises from the substitution of the plaintiff and/or the result of the other applications made (both as to strike out or withdrawal of admissions) such that the costs orders made in relation to those matters might logically flow to paragraph 8 of the plaintiff’s filed application. Otherwise costs in relation to applications for directions are commonly costs in the proceeding. Paragraph 6 of the plaintiff’s filed application [6] Paragraph 6 of the plaintiff’s filed application sought to strike out paragraphs 53(a)(x), 54 and 56 of the then defence. In a sense, the plaintiff obtained that relief as after the application was filed the defendant delivered a proposed amended defence that removed and/or amended those particular paragraphs. Little cost would have been associated with this part of the plaintiff’s filed application. Regardless, commonly an order would be justified that the defendant pay the plaintiff’s costs of that part of the plaintiff’s application. [7] However, what had been paragraph 56 of the defence (the proportionate liability defence), became paragraph 55 of the proposed amended defence that was the subject of the plaintiff’s oral application for strike out. Ultimately, I found that the proportionate liability defence was able to be pleaded by the defendant. Arguably then the costs associated with the application to strike out paragraph 55 of the then defence, should follow the outcome of what occurred with paragraph 56 of the proposed amended defence. The plaintiff’s oral application [8] The plaintiff’s oral application made with leave sought effectively to strike out paragraph 56 of the proposed amended defence (the proportionate liability defence). I declined to strike out the proportionate liability defence. Commonly that would result in an order that the plaintiff pay the defendant’s costs of that application. [9] However, in deciding that application what I have decided is that the pleaded defence is not manifestly hopeless. But the defence may ultimately fail; the plaintiff’s position in substance may ultimately be vindicated. That possibility is sufficient reason to consider the appropriateness of a different costs order such as costs in the proceeding, or the defendant’s costs in the proceeding, or the defendant’s costs in any event. -- 3 of 5 -- 4 [10] The appropriate costs order in respect of the plaintiff’s oral application may also be influenced by the reasonableness of making the application which had important case management consequences (I find it was reasonable to make the application), the importance of the issue, and the significant time spent on this issue in the context of the three applications before the court. Defendant’s application [11] The defendant sought to withdraw a series of deemed and express admissions made in its defence. There was some limited consent by the plaintiff to parts of the defendant’s application. [12] In the ordinary course for this type of application (where the defendant is required to make an application through no fault of the plaintiff, putting the plaintiff to some expense) it would be common that the defendant would bear the plaintiff’s costs of the application. [13] But here, in exercising the costs discretion it is relevant that: (a) the defendant’s application was substantially successful despite the opposition of the plaintiff; (b) the time spent on the application in the context of the three applications before the court was significant and could have been much reduced had the plaintiff taken a different position (one more consistent with my findings); (c) whether any of the matters the subject of the defendant’s application will ultimately be proved or disproved, be time-consuming, or be consequential to the outcome of the proceeding is presently unknown. [14] Such matters may justify some other costs order such a reduction in the costs the plaintiff recovers, or the plaintiff only recovering costs up to a particular point in time and the defendant recovering its costs thereafter, or there being no order as to costs at all. The exercise of the costs discretion in relation to the three applications [15] Having regard to the matters I have mentioned above, it seems to me that there are a wide range of different cost orders that could be made, and the outcome could become quite complex from an assessment point of view given there was only one hearing at which all of the applications were heard. -- 4 of 5 -- 5 [16] I consider that the appropriate costs orders on each of the three applications is that costs be costs in the proceeding. What took up the most time before the court was the application for the strike out of proportionate liability defence and the withdrawal of admissions application. I consider that the ultimate outcome of the proceeding will be a fair reflection of which party should have the costs of the applications. [17] I will order that the costs of the plaintiff’s application filed 19 May 2022, the defendant’s application filed 13 July 2022 and the plaintiff’s oral application made by leave on 26 July 2022 are all costs in the proceeding. -- 5 of 5 --