Baldwin & Anor v Icon Energy Ltd & Anor (No 3) [2016] QSC 18

SUPREME COURT OF QUEENSLAND CITATION: Baldwin & Anor v Icon Energy Ltd & Anor (No 3) [2016] QSC 18 PARTIES: RONALD WILLIAM BALDWIN (first plaintiff) SOUTHERN FAIRWAY INVESTMENTS PTY LTD ACN 115 060 378 (second plaintiff) v ICON ENERGY LTD ACN 058 454 569 (first defendant) JAKABAR PTY LIMITED ACN 058 454 765 (second defendant) FILE NO/S: SC No 3667 of 2014 DIVISION: Trial Division PROCEEDING: Application to amend pleadings Application to strike out pleadings ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 18 February 2016 DELIVERED AT: Brisbane HEARING DATE: Written submissions JUDGE: Philip McMurdo JA ORDER: The plaintiffs to pay the defendants’ costs of the plaintiffs’ application filed 12 May 2015 and the defendants’ application filed 15 May 2015. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where orders were made on 15 October 2015 giving the plaintiffs leave to amend their statement of claim – where the defendants otherwise succeeded on their cross-application by having significant portions of the further amended statement of claim struck out – where the plaintiffs argued that an order that the plaintiffs pay 60 per cent of the defendants’ costs in both applications would reflect the partial success enjoyed by both parties – whether the defendants are entitled to all their costs of the applications -- 1 of 2 -- 2 Baldwin & Anor v Icon Energy Ltd & Anor (No 2) [2015] QSC 286, cited COUNSEL: D A Skennar for the first and second plaintiffs A Nicholas for the first and second defendants SOLICITORS: Clayton Utz for the first and second plaintiffs HopgoodGanim for the first and second defendants [1] PHILIP McMURDO JA: This judgment determines questions of costs arising from last year’s judgment when I made orders as to what parts of the plaintiffs’ claims should be allowed to go forward.1 The plaintiffs were given leave to amend the claim and the statement of claim to add claims for damages and exemplary damages for deceit. To that extent their application succeeded. It was otherwise dismissed. The defendants succeeded on their cross-application by having a great deal of the further amended statement of claim struck out, although the plaintiffs were given leave to replead in certain limited respects. [2] The plaintiffs submit that each party enjoyed some success and that this would be appropriately reflected in an order that the plaintiffs pay 60 per cent of the defendants’ costs of both the plaintiffs’ and defendants’ applications. For the defendants it is submitted that they should have all of their costs. [3] It is correct that the plaintiffs enjoyed some success. This was by their being allowed to prosecute a claim for damages for deceit. However this was permitted by reference to a draft statement of claim which was delivered by the plaintiffs only after the hearing. During the hearing the plaintiffs’ counsel acknowledged that there were deficiencies in an earlier draft which had been provided on the eve of the hearing. In turn that draft acknowledged deficiencies in its predecessor, the Further Amended Statement of Claim filed on 10 April 2015, which was the subject of the defendants’ strike out application. So although the plaintiffs can claim some ultimate success, this resulted only from their addressing deficiencies in several previous editions of the pleading. When this post hearing pleading was delivered, the defendants conceded that their remaining concerns could be addressed by a request for particulars. Therefore the defendants’ costs of addressing this part of the plaintiffs’ case were incurred at times when there were deficiencies in the pleading of it. With that in mind it would be unfair to deny the defendants their costs in that respect. [4] The defendants were otherwise successful. It is true that not every submission for the defendants was accepted. But the other parts of the plaintiffs’ case which were challenged by the defendants were either struck out or not permitted to go forward as additions to the plaintiffs’ case. [5] For these reasons the plaintiffs should pay the defendants’ costs of both applications. 1 Baldwin & Anor v Icon Energy Ltd & Anor (No 2) [2015] QSC 286 -- 2 of 2 --