Built Qld Pty Limited v Pro-Invest Australian Hospitality Opportunity (ST) Pty Limited as Trustee for the Pro-Invest Australian Hospitality Opportunity (BRF Springhill) Trust (No 2) [2019] QSC 179

SUPREME COURT OF QUEENSLAND CITATION: Built Qld Pty Limited v Pro-Invest Australian Hospitality Opportunity (ST) Pty Limited as Trustee for the Pro-Invest Australian Hospitality Opportunity (BRF Springhill) Trust (No 2) [2019] QSC 179 PARTIES: BUILT QLD PTY LIMITED ACN 108 064 099 (applicant) v PRO-INVEST AUSTRALIAN HOSPITALITY OPPORTUNITY (ST) PTY LIMITED AS TRUSTEE FOR THE PRO-INVEST AUSTRALIAN HOSPITALITY OPPORTUNITY (BRF SPRING HILL) TRUST ACN 163 479 221 (respondent) FILE NO: BS No 5426 of 2017 DIVISION: Trial Division PROCEEDING: Interlocutory Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 25 July 2019 DELIVERED AT: Brisbane HEARING DATE: Written submissions JUDGE: Martin J ORDER: Subject to neither party recovering their costs for the appearance on the afternoon of 15 April 2019, the plaintiff is to pay the defendant’s costs of the application on the standard basis. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – where the parties appeared before the Court on multiple occasions in respect of an application – where that application was dismissed – where the parties dispute their responsibility for different appearances on particular days and parts of days – whether there should be separate costs orders for particular appearances – whether costs should follow the event Uniform Civil Procedure Rules 1999, r 681 COUNSEL: M Steele and B Reading for the applicant -- 1 of 3 -- 2 S Webster for the respondent SOLICITORS: Clayton Utz for the applicant Thomson Geer for the respondent [1] On 9 May 2019 the plaintiff’s application for an interlocutory injunction restraining the defendant from calling on a performance bond was dismissed. [2] The parties were directed to provide written submissions on the costs of the hearing. [3] The hearing took place over four days (11, 12, 15 and 17 April 2019) and this has given rise to more extensive submissions than might otherwise be expected. The parties wish to examine each bone of the cost carcass. The claims for costs [4] The defendant seeks orders that: (a) The plaintiff pay the defendant’s costs of the adjournment of 15 April on the indemnity basis. (b) The plaintiff otherwise pay the defendant’s costs of the application filed 11 April 2019 on the standard basis. [5] The plaintiff seeks different and more detailed orders: (a) 11 April – the plaintiff pay the defendant’s costs of the appearance on this day, on the standard basis. (b) 12 April – the defendant pay the plaintiff’s costs of the appearance on this day, on the standard basis. (c) 15 April – the plaintiff pay the defendant’s costs of the morning appearance on the standard basis, and the defendant pay the plaintiff’s costs of the afternoon appearance on the standard basis – alternatively, no order for costs of this day. (d) 17 April – the plaintiff pay the defendant’s costs of the appearance on this day, on the standard basis. Costs follow the event [6] Rule 681(1) of the Uniform Civil Procedure Rules provides that: “Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.” [7] The issues for consideration in this case are not concerned with issues in the proceedings but with the conduct of the parties and the consequences of that conduct. Costs may be awarded with respect to “a particular part of a proceeding” – r 684(1). The actions taken -- 2 of 3 -- 3 by the parties bear upon whether there should be separate costs orders for particular days, or parts of days. Orders [8] With some minor exceptions, the plaintiff should pay the defendant’s costs of the application. [9] On 12 April there was an appearance which was brought on by the plaintiff, although it attempted to forestall the appearance late in the afternoon. It arose out of: (a) the terms of the order which had been drafted by the plaintiff, and (b) the attitude of the issuer of the bond to its liability under the order. This came about because of the terms of the order sought by the plaintiff and the issuer’s conduct was a consequence of the plaintiff’s application. It should not have its costs of that day. [10] On 15 April there were two appearances. In the morning an adjournment was obtained on the basis of the late supply of an affidavit. There was no behaviour that would justify the granting of indemnity costs, but the usual rule should apply and the defendant should have its costs thrown away by the adjournment. [11] In the afternoon there was an appearance in which the plaintiff unsuccessfully sought an order joining the bond issuer and the defendant sought an order amending the original order. Neither party succeeded. It was a mutual waste of time and neither party should have its costs of that appearance. [12] The following order is made: Subject to neither party recovering their costs for the appearance on the afternoon of 15 April 2019, the plaintiff is to pay the defendant’s costs of the application on the standard basis. -- 3 of 3 --