Breeton Pty Ltd v Capregin Pty Ltd & Ors [2006] QSC 213

State Reporting Bureau [aec^Gisc 213 Queensland Government Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MUIR J REVISED COPIES ISSUED State Reporting Bureau Date: 1 August, 2006 No BS151 of 2005 BREETON PTY LTD (ACN 069 855 661) Applicant and CAPREGIN PTY LTD ACN 050 412 863 First Respondent and FIZRAY PTY LTD ACN 051 769 521 Second Respondent and WHITE RHINOS PTY LTD ACN 082 036 977 Third Respondent and WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 5 -- 1 RAPOONA PTY LTD ACN 010 071 940 Fourth Respondent and JAMES MORTIMER GORMAN Fifth Respondent 17072006 T1-2/IRK20 M/T 1/2006 (Muir J) 10 BRISBANE . .DATE 17/07/2006 JUDGMENT 2 30 40 50 2 60 -- 2 of 5 -- HIS HONOUR: The applicant in these proceedings seeks an order for costs under Rule 683 of the Uniform Civil Procedure Rules as the proceedings have been compromised. In such circumstances the rule empowers the Court to "make the order the Court considers to be just". Mr Savage SC, who appeared for the applicant, stated that his clients did not require reasons and Mr Newton, who appeared for the respondent, did not raise any objection to my following such a course. It seems to me to be desirable, however, that I state my reasons, albeit, briefly. , The general rule applicable in cases such as this was identified by McHugh J in re Minister for Immigration and Ethnic Affairs (1997) 186 COR 622 at 624. The general rule is that each party should bear its own costs as the Court is deprived of the ability to decide the most important factor which usually determines the question of costs, namely, who would have succeeded and on what terms? There is a valuable discussion of relevant principles to be found in Boscarni Investments Pty Ltd -v- Corporation of the City of Kensington and Norwood (1999) SASC 327, [paragraph 21]. One of the points made by Mr Newton was that issues as to the merits of the underlying dispute between the parties are to be determined in other litigation. Consequently, he submitted, it would be appropriate if it were to be decided that a costs order be made that the matter being left until resolution of the merits in the other proceedings. 17072006 T1-2/IRK20 M/T 1/2006 (Muir J) 1 10 20 30 40 50 3 JUDGMENT 60 -- 3 of 5 -- 17072006 T1-2/IRK20 M/T 1/2006 (Muir J) It does not seem to me that the point is a meritorious one. The relief sought here merely relates to the putting in place of a regime which would enable the first respondent, Capregin, to operate as trustee of the Kiskin Unit Trust pending resolution of these undying disputes and, indeed, to enable Capregin to vindicate the rights of the beneficiaries under the trust . Mr Newton argued also that a costs order against the respondents was inappropriate as the result actually achieved * by the applicants on the compromise was not the same as the relief sought and he further contended that the respondents had cooperated in resolving the dispute and that the conduct of the applicants had been overly zealous and aggressive. In my view, the applicants have achieved substantial success in the litigation. The compromise, although different from the relief sought in the proceedings achieved the same practical result. In my view, the conduct of the applicants has not been shown to be inappropriate. It is reasonable to conclude that had the applicants not continued to apply pressure in the litigation the compromise would not have come about. Alternatively, it would have been as beneficial from the applicant's point of view. I take into account in this regard the conduct of the parties in relation to the applicant's success in the interlocutory injunction application in the course of the proceedings. I 4 JUDGMENT -- 4 of 5 -- 1 have already given reasons on the determination of that application . In my view, the applicants were entitled to bring that application. They succeeded on it. The conduct of the respondents in relation to the matters precipitating that application would have led any reasonable person to conclude that absent a Court order or some other mechanism clearly defining the parties rights and obligations, the respondents could be expected to pursue their own interests to the prejudice of those of the applicants. Nevertheless, it does not appear to me to be appropriate that the applicants be awarded all of their costs. I take into account the fact that the relief sought was different to the result achieved and also the fact that the respondents did cooperate to a substantial degree and that that cooperation led to the compromise, Looking at the matter broadly, an order that the respondents pay two-thirds of the applicant's costs of and incidental to the application to be assessed on the standard basis is the appropriate one. I order that the second and fifth respondents pay two thirds of the applicant's costs of and incidental to the proceedings including reserve costs to be assessed oh the standard basis. 17072006 T1-2/IRK20 M/T 1/2006 (Muir J) 10 20 30 40 50 5 JUDGMENT 60 -- 5 of 5 --