Cart Provider Pty Ltd & Ors v Park & Ors [2017] QSC 27

SUPREME COURT OF QUEENSLAND CITATION: Cart Provider Pty Ltd & Ors v Park & Ors [2017] QSC 27 PARTIES: CART PROVIDER PTY LTD ABN 13 119 455 837 (first applicant) CHINA FIRST PTY LTD ABN 69 135 588 411 (second applicant) WARATAH COAL PTY LTD ABN 94 114 165 669 (third applicant) CLIVE FREDERICK PALMER (fourth applicant) QNI RESOURCES PTY LTD ABN 14 054 117 921 (fifth applicant) QNI METALS PTY LTD ABN 56 066 656 175 (sixth applicant) v JOHN PARK (first respondent) STEFAN DOPKING (second respondent) KELLY-ANNE TRENFIELD (third respondent) QUENTIN OLDE (fourth respondent) QUEENSLAND NICKEL PTY LTD (IN LIQUIDATION) ABN 85 009 842 068 (fifth respondent) FILE NO/S: SC No 6150 of 2016 DIVISION: Trial Division PROCEEDING: Application DELIVERED ON: 8 March 2017 DELIVERED AT: Brisbane HEARING DATE: On the papers. JUDGE: Bond J ORDER: The order of the Court is that the first to sixth applicants jointly and severally must pay the costs of Queensland Nickel Pty Ltd (In Liquidation) of the proceeding (including of its application to be removed as a party) and -- 1 of 3 -- 2 of its appearance on 22 February 2017, on the standard basis. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – where Queensland Nickel Pty Ltd (In Liquidation) was removed from the proceeding pursuant to r 69(1)(a) of the Uniform Civil Procedure Rules 1999 (Qld) – where the applicants consented to the Court ordering that they pay the costs of Queensland Nickel Pty Ltd (In Liquidation) – whether the costs order should be made against the applicants jointly, or jointly and severally Uniform Civil Procedure Rules 1999 (Qld), r 69(1)(a) Perigo v Workers Compensation Nominal Insurer and Anor (No 3) [2013] NSWSC 6, cited Thiess Watkins White Construction (in liq) v Witan Nominees (1985) Pty Ltd [1992] 2 Qd R 452, cited COUNSEL: K Byrne for the applicants T P Sullivan QC for the former fifth respondent SOLICITORS: Alexander Law for the applicants King & Wood Mallesons for the former fifth respondent [1] At a hearing on 8 February 2017 Queensland Nickel Pty Ltd (In Liquidation) (“the fifth respondent”) was removed as the fifth respondent to this proceeding pursuant to rule 69(1)(a) of the Uniform Civil Procedure Rules 1999 (Qld). The order was formalised in my order dated 13 February 2017. [2] I directed the parties to exchange brief written submissions on the question of the costs order which should be made, so that I could determine that issue on the papers. [3] I received submissions from the fifth respondent and brief oral submissions from Senior Counsel on its behalf at a hearing on 22 February 2017 which was principally directed to other matters. [4] The fifth respondent had submitted that the first to sixth applicants jointly and severally should pay the costs of the fifth respondent of and incidental to the application for removal which had been filed 6 February 2017, including the appearances on 8 and 22 February 2017. The principal argument was that the proceeding was a proceeding by which the applicants sought to have removed as liquidators, the persons who had been appointed as liquidators of the fifth respondent and there had never been a proper reason to have the fifth respondent as a party to the proceeding. [5] The first to sixth applicants delivered a written submission which consented to the Court ordering that they pay the costs of the proceeding of the fifth respondent, including the appearance on 22 February 2017, on the standard basis. [6] I caused my Associate to make an inquiry of the parties in these terms: “… His Honour proposes to make a consent order in these terms in proceeding 6150/16: “The first to sixth applicants jointly and severally must pay the costs of Queensland Nickel Pty Ltd (In Liquidation) of the proceeding (including of its application to be removed as a party) and of its appearance on 22 February 2017, on the standard basis.” -- 2 of 3 -- 3 His Honour notes that the submissions filed on behalf of Queensland Nickel Pty Ltd (In Liquidation) referred only to the costs of and incidental to the application to be removed as a party and not of the proceeding more generally. His Honour has assumed that that was an error, but before he finalises the order enquires whether the first to sixth applicants or Queensland Nickel Pty Ltd (in liquidation) wish to make further submissions.” [7] The fifth respondent by its solicitors advised that it did not wish to make any further submissions. I have inferred that it was content with the form of order I proposed. [8] The first to sixth applicants, by their solicitors, submitted that the costs order should only be made against them jointly, as opposed to jointly and severally. They made no other submission. I have inferred that the only question of controversy concerning the order referred to at [6] above, was the question whether the order should specify that the liability of the first to sixth applicants is joint and several. [9] In Thiess Watkins White Construction (in liq) v Witan Nominees (1985) Pty Ltd [1992] 2 Qd R 452, Cooper J observed that: “The general rule that costs against two or more persons are joint and several is not disturbed unless, and only to the extent that, one defendant conducts a separate and distinct defence which incurs costs which cannot be attributed to the joint conduct of the defendants in the defence of the action.” [10] The same rule was expressed more generally by McCallum J in Perigo v Workers Compensation Nominal Insurer and Anor (No 3) [2013] NSWSC 6 at [3] in these terms “…generally in multiple-party litigation, an order that costs be paid by two or more parties to the litigation should create a joint and several liability for the payment of those costs.” [11] No submission was advanced by the applicants which sought to demonstrate any reason that the general rule should not apply. In any event, the issues in this proceeding had been developed by pleadings. Only one form of statement of claim and reply was delivered on behalf of all the applicants. None of the applicants sought to advance their case for removal of the liquidators in any separate or distinct way. [12] In my view there is no reason to depart from the general rule. [13] Accordingly, the order I make is that the first to sixth applicants jointly and severally must pay the costs of Queensland Nickel Pty Ltd (In Liquidation) of the proceeding (including of its application to be removed as a party) and of its appearance on 22 February 2017, on the standard basis. -- 3 of 3 --