Best Price Real Estate Pty Ltd v Equity 2 Pty Ltd [2021] QCA 205

SUPREME COURT OF QUEENSLAND CITATION: Best Price Real Estate Pty Ltd v Equity 2 Pty Ltd [2021] QCA 205 PARTIES: BEST PRICE REAL ESTATE PTY LTD ACN 164 134 025 (appellant) v EQUITY 2 PTY LTD ACN 138 153 367 (respondent) FILE NO/S: Appeal No 9295 of 2020 DC No 73 of 2020 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal – Further Orders ORIGINATING COURT: District Court at Southport – [2020] QDC 180 (Kent QC DCJ) DELIVERED ON: 24 September 2021 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers JUDGES: Sofronoff P and McMurdo JA and Henry J ORDERS: 1. Appellant to pay to the respondent one half of the respondent’s costs of the application filed on 12 June 2020 in the District Court. 2. Respondent to pay to the appellant one half of the appellant’s costs of the appeal. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – GENERALLY – where the primary judge gave summary judgment in the respondent’s favour and struck out the appellant’s Amended Defence – where the Court of Appeal set aside the order for summary judgment – where the strike out application had been rightly made – whether the respondent is entitled to the costs of the strike out application – whether the appellant is entitled to the costs of the appeal – whether costs should be reserved – whether the respondent is entitled to an indemnity certificate Appeal Costs Fund Act 1973 (Qld), s 15, s 16 Uniform Civil Procedure Rules 1999 (Qld), r 171 Best Price Real Estate Pty Ltd v Equity 2 Pty Ltd [2021] QCA 99, considered -- 1 of 3 -- 2 COUNSEL: N M Cooke for the appellant J C Faulkner for the respondent SOLICITORS: Redmond + Redmond for the appellant Woods Hatcher Solicitors for the respondent [1] SOFRONOFF P: I agree with McMurdo JA. [2] McMURDO JA: On 11 May 2021, this Court allowed the appeal and set aside orders for summary judgment and costs which had been made in the respondent’s favour in the District Court.1 The parties have now provided written submissions as to the orders which should be made for the costs of the appeal and the application at first instance. [3] The circumstances here are relatively unusual. This Court agreed with the primary judge that the appellant’s Amended Defence should be struck out pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld). But it set aside the order that summary judgment given in the respondent’s favour, partly because the respondent had not sought summary judgment on all of its case. On the part of the case for which it had sought summary judgment, we held that there were some factual questions which warranted a trial. Those questions, however, had not been pleaded and one of them had not been raised in the appellant’s submissions in this Court. [4] The primary judge ordered the appellant to pay the respondent’s costs of the proceeding. That order has been set aside. The first question now is what order should be made for the costs of the respondent’s application in the District Court, which sought orders for the striking out of the defence and “further, or in the alternative”, for summary judgment. The strike out application was rightly made, and had that been the only application, the respondent would be entitled to its costs of it. Summary judgment ought not to have been granted. However, given the state of the Amended Defence, it was reasonable for the respondent to seek summary judgment (as it confined its application in the hearing before the primary judge). Justice would be served by ordering the appellant to pay one half of the costs of the application filed in the District Court on 12 June 2020. [5] The appellant submits that it should have the costs of the appeal, given the outcome. The respondent submits that in the unusual circumstances of this case, the costs should be reserved. Alternatively, it submits that if costs are ordered in the appellant’s favour, the respondent should have an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 (Qld). [6] In my view, there is no reason to reserve the costs. The appellant should have some order in its favour, given the substantial success which it has enjoyed here. On the other hand, it persisted in its argument in support of its pleading, and it succeeded on some points which were not pleaded. As for an indemnity certificate, it could be said that the appeal succeeded, in part, on a question of law, in that the judge erred in giving a judgment on part of the claim for which no summary judgment was sought. However the summary judgment given on the relevant claims succeeded on the basis of the factual issues to be tried. Consequently, it cannot be said that the appeal has succeeded only on a question of law, in the terms of s 15(2), and the effect of an 1 Best Price Real Estate Pty Ltd v Equity 2 Pty Ltd [2021] QCA 99. -- 2 of 3 -- 3 indemnity certificate, by s 16(1), would be to entitle the respondent to all of its costs. For those reasons an indemnity certificate ought not to be granted. I would order that the respondent pay one half of the appellant’s costs of the appeal. [7] I would order as follows: 1. Appellant to pay to the respondent one half of the respondent’s costs of the application filed on 12 June 2020 in the District Court. 2. Respondent to pay to the appellant one half of the appellant’s costs of the appeal. [8] HENRY J: I agree with the reasons of McMurdo JA. -- 3 of 3 --