EIE Ocean BV v Commissioner of Stamp Duties [1995] QSC 223

4 26o5~ 5c 15/2.lJ _tft(J; State Reporting Bureau ( 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.) 1 la~ l.J..,, ! Q / 1 _;) ' ,' I I ( .r i ,i SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MACKENZIE J No 5 of 1993 EIE OCEAN B.V. and COMMISSIONER OF STAMP DUTIES BRISBANE .. DATE 01 /09/95 JUDGMENT 1 REVISED COPIES ISSUED State Reporting Bureau Date /ef" / $"" Applicant Respondent 4th Floor, The Law Courts. George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 7 -- 010995 LMS (Mackenzie J) HIS HONOUR: I make the following orders as to costs: (1) The respondent pay the applicant its costs of and incidental to the respondent's motion dismissed by order made on 26 February 1993 to be taxed~ (2) That the respondent pay the applicant its costs of and incidental to the application for the interim and interlocutory injunctions granted on 5 January 1993 and 5 February 1993 respectively, together with the costs of the adjournments on 7 January 1993 and 20 January 1993 to be taxed; (3) With respect to all other costs including reserved costs not otherwise disposed of I order there be no order as to costs. I publish my reasons. JUDGMENT 2 10 ~\ I \ 2(, /,, 30 40 C 50 60 -- 2 of 7 -- ( ') ( ~ ) IN THE SUPREME COURT OF QUEENSLAND SL q5/2Z3 Brisbane Apn. No. 5 of 1993 Before the Hon. Justice Mackenzie [Re: EIE Ocean B.V.] BE1WEEN: EIE OCEAN B.V. Applicant COMMISSIONER OF STAMP DUTIES Respondent JUDGMENT - MACKENZIE J. Judgment delivered 01/09/ 1995 CATCHWORDS: COSTS - ReseIVed - Costs of applicant's successful applicati.on for interim and interlocutory injuncti.ons and relevant adjournments - Costs of respondent's unsuccessful moti.on to dismiss applicant's applicati.on. COUNSEL: SOLICITORS: R. Gotterson Q.C. and H. Alexander for Applicant K. Dorney Q.C. and J. Logan for Respondent Mallesons Stephen Jaques for Applicant K.M. O'Shea, Crown Solicitor for Respondent -- 3 of 7 -- ( IN THE SUPREME COURT OF QUEENSLAND Brisbane Before the Hon. Justice Mackenzie [Re: EIE Ocean B.V.] BE1WEEN: EIE OCEAN B.V. COMMISSIONER OF STAMP DUTIES JUDGMENT - MACKENZIE J. Judgment Delivered 01/09/1995 Apn. No. 5 of 1993 Applicant Respondent C_/ On 26 July 1995 judgment was delivered in these long running proceedings under the ( . Judicial Review A et. The proceedings were commenced and an interim restraining order granted on 5 January 1993 by Lee J. The application for an interlocutory restraining order was adjourned on two occasions until it became before Thomas J. on 5 February 1993. He granted an interlocutory restraining order and adjourned a motion by the respondent to stay or dismiss the application under s.48 of the Judicial Review A et. On 25 February 1993 I dismissed the respondent's motion for relief under s.48 and, on that occasion, said the following:- "It is difficult to see why negotiations have broken down to the extent that they have, in view of the obvious but not actually conceded inadequacy of the case in respect of disclosing the basis upon which the Commissioner refused to reduce the value of land, and the submission that the statement of the basis upon which the applicant -- 4 of 7 -- 2 relied to establish that the 'trademark, trade name, concept and design' component was not 'land', was inadequate for the purpose of adequately raising the nature of the taxpayer's contention. The case is one where one would have thought that it should not be impossible to reach a consensus so that the issue or issues between the parties . could be presented to the Court of Appeal in a form which satisfied both parties." Following that, negotiations were entered into between the parties culminating m an application for directions in the judicial review matter being' brought on 11 August 1994. Directions and an order granting leave to the applicant to amend its application by substituting a revised proposed case stated were made by Lee J. The costs of all of those proceedings were reserved. When the matter came on before me for the hearing of the application under the Judicial Review Act on 20 April 1995 only two issues remained in contention. In the decision r-) delivered on 26 July 1995 the applicant succeeded on one and the respondent on the other. C) ,An opportunity was afforded to the parties to make submissions as to costs after having the opportunity to peruse the reasons for judgment. It is common ground that the costs of the respondent's motion to stay or dismiss under. s.48 should be paid by the respondent to the applicant. ·Otherwise the parties are in dispute as to the basis upon which the order for costs should be made. · The respondent submits as a primary position that the costs of the interim injunction should _not be granted to the applicant because the proceedings were brought without () ,,..--··-,\ reference to the respondent. • So far as the costs of the application itself are concerned, the ( __ ) respondent submits that although each party succeeded· on one issue the· applicant succeeded on an aspect not raised as a specific amendment until January 1994. It was submitted that because of a substantial concentration of effort on the issue upon which the respondent was successful at the hearing, any costs order should. be in the respondent's favour even if only as a fractional sum. , Alternatively it was sub.mitted that ·the only costs order (apart from that relating to the n.otice pf motion to .stay ·or dismiss), which ought to be made in favour of the applicant was in respect of the interlocutory injunction. It was submitted that the ·only justification for that could -- 5 of 7 -- ( 3 be that the then form of the case stated was recognised as flawed but that ultimately, in terms of remaining differences, each side enjoyed equal success .. It was submitted that the applicant should not be awarded any costs on the issue upon which it was successful prior to its being specifically raised in January 1994. The applicant submitted that the respondent should pay the costs of and incidental to the application incurred up to and including 10 August 1994, the day before the final application for directions and amendment of the application was made. It. was submitted that the costs· of and incidental to the respondent's motion to stay or dismiss should be its costs, but that otherwise there should be no orders as to costs. The grounds upon which the applicant made these submissions were that a finding that there was a serious question to be tried had been made. The fact that the case was amended so substantially by agreement supported the view that the case in the form originally submitted was deficient, as the applicant contended. As the correspondence suggested that the Commissioner intended to state, sign and deliver a case in a deficient form on or after 5 January 1993 it was necessary for the respondent to restrain the Commissioner. The respondent had unsuccessfully argued that there was no serious question to be tried at the hearing for interlocutory relief. After (___, interlocutory judgment was given it was necessary for the respondent to negotiate to obtain the Commissioner's agreement to the substantial agreed amendments. On the two points which have not been agreed there was a finding in favour of the respondent on one and the applicant on the other. One difficulty about the matter is that I am not in a position to know to what extent the final form of the case stated considered in the proceedings for judicial review was the result of a concession that all of .the amendments reflected acceptance that the case stated was inadequate in content, or merely reflected changes in expression. It 'is true that in the passage quoted from -- 6 of 7 -- 4 the reasons for judgment delivered on 26 February 1993, there is reference to inadequacy of the case. The fact that there were only two matters remaining in issue following negotiations tends to suggest that it was possible to reach a consensual position with respect to the other matters notwithstanding the Commissioner's dominant role in the preparation of the case stated. I should also note that while the proposed amendment to the case stated to incorporate the documents relating to the trademarks and like documents was only introduced at a late stage the argument at all times was as to the effect if any of those items upon the valuation. Having regard to my overall impression of the matter I make the following orders:- !. The respondent pay the applicant its costs of and incidental to the respondent's motion dismissed by order made on 26 February 1993; 2. That the respondent pay the applicant its costs of and incidental to the application for the interim and interlocutory injunctions granted on 5 January 1993 and 5 February 1993 respectively, together with the costs of the adjournments on 7 January 1993 and 20 January 3. 1993. With respect to all other costs including reserved costs I order that there be no order as to costs. () -- 7 of 7 --