Aged & Disabled Persons Hostel & Welfare Association v Beenleigh Bowls & Recreation Club Inc & Ors (No 2) [2022] QSC 121

SUPREME COURT OF QUEENSLAND CITATION: Aged & Disabled Persons Hostel & Welfare Association v Beenleigh Bowls & Recreation Club Inc & Ors (No 2) [2022] QSC 121 PARTIES: AGED & DISABLED PERSONS HOSTEL & WELFARE ASSOCIATION (ACN 010 124 651) (applicant) v BEENLEIGH BOWLS & RECREATION CLUB INC (ABN 68 030 516 270) (first defendant) COCA-COLA AMATIL AUSTRALIA PTY LTD (ACN 076 594 119) (second defendant) EVOCA AUSTRALIA PTY LTD (ACN 153 582 613) (third defendant) EVOCA S.P.A. (fourth defendant) QUEENSLAND VENDING SYSTEMS PTY LTD (ACN 099 125 103) (fifth defendant) FILE NO/S: BS No 4594 of 2018 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 14 June 2022 DELIVERED AT: Brisbane HEARING DATE: The question of costs was considered on written submissions without oral hearing JUDGE: Davis J ORDER: 1. The plaintiff pay the first defendant’s costs of the application fixed in the sum of $3,368.60. 2. The plaintiff pay each of the second, third and fourth defendants’ costs of the application assessed on the standard basis. 3. The plaintiff pay the fifth defendant’s costs of the application assessed on the standard basis, excluding -- 1 of 8 -- 2 the costs of appearance before the court on 16 February 2022 and 29 April 2022. CATCHWORDS: PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - where the plaintiff sued five defendants - where the claim arose from a fire which damaged the plaintiff’s real property - where the fire emanated from a faulty coffee vending machine - where the first defendant was the lessee of the plaintiff’s premises - where the second defendant was the owner of the coffee machine - where the third and fourth defendants were the manufacturer and importer into Australia of the coffee machine - where the fifth defendant had serviced the coffee machine - where the plaintiff brought an application for an order authorising the destructive testing of a similar coffee machine to the one partially destroyed in the fire - where that machine was owned by the second defendant - where the first and fifth defendants appeared on the application but neither supported nor opposed it - where the second, third and fourth defendants appeared and opposed the application - where the second defendant was separately represented to the third and fourth defendants who were jointly represented - where the application for destructive testing was dismissed - where the plaintiff conceded it should pay the costs of the second defendant - where the plaintiff resisted paying the costs of the appearance of each of the first and fifth defendants - where the plaintiff resisted paying the costs of the third and fourth defendants - where the plaintiff submitted that the costs of the third and fourth defendants were unreasonably incurred as their interests aligned with that of the second defendant - whether the costs of appearance of each of the first and fifth defendants were reasonably incurred - whether the costs of the third and fourth defendants were reasonably incurred - whether the plaintiff should be ordered to pay the costs of appearance of the first and fifth defendants - whether the plaintiff ought to be ordered to pay the costs of the third and fourth defendants Uniform Civil Procedure Rules 1999, r 250, r 681, r 687 Aged & Disabled Persons Hostel & Welfare Association v Beenleigh Bowls & Recreation Club Inc & Ors [2022] QSC 71, related Commonwealth of Australia v Gretton [2008] NSWCA 117, cited HP Mercantile Pty Ltd v Hartnett [2017] NSWCA 79, cited Taylor v Owners - Strata Plan No 11564 (No 2) [2013] NSWCA 153, cited COUNSEL: No oral submissions were made SOLICITORS: Hall & Wilcox for the plaintiff McInnes Wilson Lawyers for the first defendant -- 2 of 8 -- 3 Carter Newell Lawyers for the second defendant Barry Nilsson for the third and fourth defendants HBM Lawyers Pty Ltd for the fifth defendant [1] The defendants all apply for costs of an unsuccessful application brought by the plaintiff for an order seeking access to a coffee machine for the purposes of destructive testing (the primary judgment).1 Background [2] The proceedings concern a fire which occurred on 2 June 2016 at 71 Hanover Street, Beenleigh (the premises). The premises are owned by the plaintiff and leased to the first defendant, Beenleigh Bowls & Recreation Club Inc (the Bowls Club). The premises were damaged by the fire. In the proceedings, the plaintiff seeks damages to compensate it for the loss. [3] Evidence suggests that the fire emanated from a coffee vending machine which the Bowls Club had on the premises. [4] All the other defendants are associated with the coffee machine: 1. the second defendant, Coca-Cola Amital Australia Pty Ltd (Coca-Cola) owned the coffee machine; 2. the third defendant, Evoca Australia Pty Ltd (Evoca Australia) imported the coffee machine into Australia; 3. the fourth defendant, Evoca SPA, manufactured the coffee machine; 4. the fifth defendant, Queensland Vending Systems (QVS), serviced the machine. [5] The different causes of action against the various defendants are briefly analysed in the primary judgment.2 It is unnecessary to repeat that analysis or expand upon it. [6] In the fire, the coffee machine was substantially destroyed. Expert evidence has been obtained. Despite the damaged state of the coffee machine, some opinions could be expressed. However, it was not possible to conduct “glow wire tests” and “needle flame tests” which are tests which might determine whether combustible materials were on or around the electrical compartment of the coffee machine. [7] It appears that there were combustible elements in the electrical compartment of the coffee machine. The expert evidence is to the effect that the fire started in the electrical compartment and then spread. The real issue in the case is as to how it came to be that combustible materials were in and around the electrical compartment of the coffee machine. It could have been in that state when manufactured or it could have come to have been in that state during its life as a result of maintenance, etc. 1 Aged & Disabled Persons Hostel & Welfare Association v Beenleigh Bowls & Recreation Club Inc & Ors [2022] QSC 71; the application was made pursuant to r 250 of the Uniform Civil Procedure Rules 1999. 2 Aged & Disabled Persons Hostel & Welfare Association v Beenleigh Bowls & Recreation Club Inc & Ors [2022] QSC 71 at [5]-[17]. -- 3 of 8 -- 4 [8] A similar coffee machine was identified as being owned by Coca-Cola. An application was brought by the plaintiff to conduct “glow wire tests” and “needle flame tests” on that machine. That would establish whether or not there were combustible materials in and around the electrical compartment of that machine at the time it was tested. It would not prove the state of the machine immediately after manufacture unless its maintenance history could be proved. [9] The primary application failed because: “[53] The testing of the second coffee machine will raise a new controversy, namely the maintenance history of that machine and whether that machine is practically in its immediate post- manufacture state. [54] Therefore, the making of the order sought is likely to widen the dispute between the parties and lead to further expense in circumstances where it cannot be said to be likely that probative evidence relevant to the case will be obtained. The destructive testing of the second coffee machine does not promote the just and expeditious resolution of the issues in the case.”3 [10] On 29 April 2022, I ordered: “1. The application is dismissed. 2. Any respondent wishing to make submissions on costs shall file and serve written submissions by 4.00 pm on 13 May 2022. 3. The applicant shall file any submissions on costs in response by 4.00 pm on 27 May 2022. 4. Each party has leave to file and serve by 4.00 pm on 10 June 2022 any application for leave to make oral submissions on costs. 5. In the absence of any application to make oral submissions on costs being filed by 4.00 pm on 10 June 2022, the question of costs will be decided on any written submissions filed and without further oral hearing.” [11] All parties have filed written submissions. None applied for leave to make oral submissions on the question of costs. [12] All defendants seek their costs, essentially on the basis that they successfully defended the application and costs should follow the event.4 [13] The plaintiff accepts that it should pay the costs of Coca-Cola. An order should be made to that effect. The plaintiff resists orders that it pay the costs of any other defendant. 3 Aged & Disabled Persons Hostel & Welfare Association v Beenleigh Bowls & Recreation Club Inc & Ors [2022] QSC 71. 4 Uniform Civil Procedure Rules 1999, r 681(1). -- 4 of 8 -- 5 The first defendant: the Beenleigh Bowls & Recreation Club Inc [14] On the hearing of the primary application, the first defendant took a neutral position; it neither supported nor opposed the application. The plaintiff submits that the Bowls Club’s “… position of neutrality could have been conveyed to the court without any attendance with practically no costs being incurred”. I accept part of that submission. There was certainly no need for any attendance. However, that gives rise to consideration of what other costs were reasonably incurred. [15] The Bowls Club attached to its written submissions a costs statement. That is: 21.01.22 Email in H&W $16.20 21.01.22 Perusal Application $16.20 21.01.22 Email out counsel $16.20 24.01.22 Email in counsel $16.20 04.02.22 Letter to client $112.00 08.02.22 Email in H&W $16.20 10.02.22 Email in H&W $16.20 10.02.22 T/O H&W $80.60 10.02.22 Email out H&W $16.20 10.02.22 Perusal Courtney Daunt affidavit $2,203.20 15.02.22 Email in H&W $16.20 15.02.22 Email in BN $16.20 15.02.22 Perusal affidavit of Courtney Daunt $16.20 15.02.22 Perusal affidavit of Robert Samut $32.40 15.02.22 Email in client $16.20 16.02.22 Drafting Order $22.40 16.02.22 Email out parties $16.20 16.02.22 Email in HBM $16.20 16.02.22 Email CN $16.20 16.02.22 Perusal affidavit of Laura Horvat $27.00 16.02.22 Email in H&W $16.20 16.02.22 Perusal Applicant’s submissions $324.00 16.02.22 Appearance at Application $605.60 29.04.22 Appearance - judgment $605.60 29.04.22 Perusal Judgment $324.00 -- 5 of 8 -- 6 Subtotal $4,579.80 Care & Conduct - 35% Total $6,182.00 [16] The plaintiff, in its written submissions, does not challenge the various costs assessments made in the costs statement. [17] The costs of appearance at the application and the costs of the appearance receiving judgment, in my view, were unnecessary given the stance taken by the Bowls Club on the application. The Bowls Club though had to consider the material filed in the application before finalising its position. Similarly, the judgment had to be perused as that was relevant to the ongoing proceedings in which the Bowls Club is a party. [18] The plaintiff pointed to the fact that the Bowls Club took the opportunity to amend its defence when the application came on for hearing. The plaintiff submits that it should not effectively pay the costs of that amendment being made. [19] That the amendment was made to the defence is another reason for denying the Bowls Club the costs of appearance but not, in my view, the costs of considering the plaintiff’s application. [20] I am empowered by r 687(2)(c) of the UCPR to fix the costs. Reasonable costs of the Bowls Club on a party/party basis is achieved, in my view, by deducting from the costs statement the two fees for appearance at the application and the judgment and disallowing the care and conduct factor. That calculates to $3,368.60 and I will order the plaintiff to pay the Bowls Club that sum. Third and fourth defendants: Evoca Australia Pty Ltd and Evoca SPA [21] Evoca Australia and Evoca SPA were together represented by the same solicitors and counsel. [22] The plaintiff resists the costs of Evoca Australia and Evoca SPA in reliance upon the principle that where there is no conflict of interest between parties who are on the same side of the record, costs of independent representation may not be reasonable.5 The plaintiff’s contention in reliance upon those principles is expressed in its written submissions as follows: “19. In the context of their responses to the application, there was an alignment of interest between the Second Defendant and the Third and Fourth Defendants. The application sought an order against the Second Defendant that required it to sell property that it wished to retain, giving it a direct and discrete interest in the application. Aside from that unique perspective, the Third and Fourth Defendants simply replicated the Second Defendant's opposition to the application. 5 Taylor v Owners - Strata Plan No 11564 (No 2) [2013] NSWCA 153 at [6], HP Mercantile Pty Ltd v Hartnett [2017] NSWCA 79 at [13] and Commonwealth of Australia v Gretton [2008] NSWCA 117. -- 6 of 8 -- 7 20. Opposition to the orders sought on the application was articulated by the Second Defendant. The Third and Fourth Defendants were entitled to express their position, but where that position simply replicated the stance of the Second Defendant it is not reasonable for the Plaintiff to be required to pay their costs of having done so.” [23] True it is that the position adopted on the principal application by Coca-Cola on the one hand and Evoca Australia and Evoca SPA on the other was the same; they all opposed the application. However, they by no means have similar interests in the principal proceedings. Coca-Cola installed a machine in the premises which, arguably, was defective. It could have been defective for a number of different reasons: 1. a design fault so that it was manufactured in a way not complying with the requirement that there not be combustible materials in and around the electrical compartment of the machine; 2. use; 3. defective maintenance. [24] Evoca Australia and Evoca SPA are logically only likely to be liable if the coffee machine was defective as manufactured. In practical terms, proof that the coffee machine was defective as manufactured would exonerate Coca-Cola but implicate Evoca Australia and Evoca SPA. [25] Given those different and opposed interests, in my view, it was reasonable for Evoca Australia and Evoca SPA to be separately represented on the primary application, notwithstanding that they, like Coca-Cola, opposed the order for destructive testing. [26] Evoca Australia and Evoca SPA should have their costs of the primary application. The fifth defendant: Queensland Vending Systems Pty Ltd [27] On the primary application, QVS took the same position as did the Bowls Club; it neither supported nor opposed the application. The plaintiff resists the costs application by QVS on the same basis that it resisted the costs application of the Bowls Club.6 [28] For the reasons I have already given in relation to the costs application by the Bowls Club, QVS should have its costs but not the costs of the appearance, either at the hearing of the primary application or receiving judgment. [29] No costs statement has been produced by QVS and so I cannot fix the costs. Orders [30] Consistently with the reasons I have given, the orders are: 1. The plaintiff pay the first defendant’s costs of the application fixed in the sum of $3,368.60. 6 Except for the point about the amendment of the Bowls Club’s defence. -- 7 of 8 -- 8 2. The plaintiff pay each of the second, third and fourth defendants’ costs of the application assessed on the standard basis. 3. The plaintiff pay the fifth defendant’s costs of the application assessed on the standard basis, excluding the costs of appearance before the court on 16 February 2022 and 29 April 2022. -- 8 of 8 --