Bendigo Bank v Best ALB Pty Ltd (No 2) [2016] QDC 178

DISTRICT COURT OF QUEENSLAND CITATION: Bendigo Bank v Best ALB Pty Ltd (No 2) [2016] QDC 178 PARTIES: BENDIGO BANK (applicant) v BEST ALB PTY LTD (respondent) FILE NO/S: 1558/16 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 15 July 2016 DELIVERED AT: Rockhampton HEARING DATE: On the papers. Applicant’s submissions filed 1 July 2016 and respondent’s submissions filed 8 July 2016. JUDGE: Smith DCJA ORDER: 1. The respondent is to pay the applicant’s costs of and incidental to the application (including reserved costs) on the standard basis as agreed or assessed. CATCHWORDS: COSTS – whether costs should be on the standard basis or indemnity basis Uniform Civil Procedure Rules 1999 r 681 r 702 r 703 Bendigo Adelaide Bank Ltd v Best ALB Pty Ltd [2016] QDC 158 Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248 LPD Holdings (Aust) Pty Ltd & Anor v Phillips, Hickey and Toigo & Ors [2013] QCA 305 COUNSEL: Mrs S. Anderson for the applicant -- 1 of 3 -- 2 Mr M. Long for the respondent SOLICITORS: K & L Gates for the applicant T.F. Wardrobe & Co. for the respondent Introduction [1] This is the costs decision as a result of the decision given in Bendigo Adelaide Bank Ltd v Best ALB Pty Ltd.1 [2] The applicant was successful in that application. The applicant submits that the respondent should pay its costs on an indemnity basis. It submits it is appropriate for the Court to orders costs on such a basis as: (a) The application was due to be filed on 17 March 2016 when the solicitors for the applicant discovered the respondent had been deregistered; (b) The company was reregistered; (c) There was a repetition of the demand for vacant possession and a refusal by the respondent before the application was filed; (d) On 5 May 2016, the application was adjourned by his Honour Judge Dearden; (e) The matter was listed for hearing on 26 May 2016 but it could not proceed that day because it was thought by the respondent’s solicitor that the matter would go for longer than two hours and two witnesses for the applicant were required for cross-examination; (f) Ultimately when the matter came on for hearing Mr Steel was cross- examined but Mr Dorey was not; (g) The matter did take some time but this included the standing down of the matter for the respondent to take instructions; and (h) The actions by the respondent delayed the inevitable. [3] The respondent, on the other hand, cannot resist an order for costs but submits that they be paid on the standard basis. It is submitted that none of the matters raised by the applicant justify an order for costs on the indemnity basis. The rules [4] Rule 681 of the Uniform Civil Procedure Rules 1999 (“UCPR”) provides: “(1) 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.” [5] Rule 702 of the UCPR provides: “(1) Unless these rules or an order of the Court provides otherwise, a costs assessor must assess costs on the standard basis.” [6] Rule 703 of the UCPR provides: “(1) The Court may order costs to be assessed on the indemnity basis. 1 [2016] QDC 158. -- 2 of 3 -- 3 (2) Without limiting subrule (1), the Court may order that costs be assessed on the indemnity basis if the Court orders the payment of costs – (a) out of a fund; or (b) to a party who sues or is sued as a trustee; or (c) of an application in a proceeding brought for noncompliance with an order of the Court.” [7] In LPD Holdings (Aust) Pty Ltd & Anor v Phillips, Hickey and Toigo & Ors2 the Court of Appeal set out considerations which are relevant in an application for indemnity costs. At [21]-[22] it was said: “[21] The applicable principles for the awarding of indemnity costs were usefully summarised by Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd.3 However those principles operate as a guide to the exercise of the relevant discretion. They do not define all of the circumstances in which the discretion is to be exercised and do not limit the width of that discretion. Further, the categories in which the discretion to award indemnity costs may be exercised are not closed. [22] Whilst the awarding of costs on an indemnity basis will always ultimately depend upon the exercise of a discretion in the particular circumstances of each individual case, the justification for an award of indemnity costs continues to require some special or unusual feature of the particular case. As was observed by Basten JA in Chaina v Alvaro Homes Pty Ltd,4 the general rule remains that costs should be assessed on a party and party basis, and the standard to be applied in awarding indemnity costs ought not ‘be allowed to diminish to the extent that an unsuccessful party will be at risk of an order for costs assessed on an indemnity basis, absent some blameworthy conduct on its part’.” Disposition [8] Having considered all matters, in my opinion, it is appropriate in this case to award only costs on the standard basis. In my view, the opposition to the application by the applicant was arguable. The fact is, rent was paid by the respondent to the applicant and, further, some correspondence relative to the contractual negotiations referred to the lease and the respondent as the tenant. There were arguments available to the respondent, in my opinion, to oppose the application. Whilst, ultimately, the applicant was wholly successful, I find that it was not unreasonable for the respondent to argue its case before the Court. [9] I do not consider, in the circumstances, there is sufficient “blameworthy conduct” on the part of the respondent to justify an award of indemnity costs. Orders [10] In the circumstances, I order that the respondent pay the applicant’s costs of and incidental to the application (including reserved costs) on the standard basis as agreed or assessed. 2 [2013] QCA 305. 3 (1993) 46 FCR 225; 118 ALR 248. 4 [2008] NSWCA 353 at [113]. -- 3 of 3 --