Farrow Mortgage Services Pty Ltd v Heathley Ltd [1993] QSC 180

I \ ) ( ' 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 de JERSEY J · No 1903 of 1992 FARROW MORTGAGE SERVICES.PTY LTD (.in liq-uidation) and HEATHLEY LIMITED BRISBANE .. DATE 11/06/93 ORDER 1 REVISED COPIES ISSUED Stat~ Reporting Bureau Date :k<ft b I q 3> Plaintiff Defendant 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 3 -- 110693 evs (O'Sullivan DCJ) HIS £0NOUR: I am satisfied :that the plaintiff must have its costs up to 16 March 1993 • .It was then that the defendant unequivocally indicated that if the Edgar appea~ succeeded, the. defendant would -consent to judgment~ That appeal did succeed, judgment being given on 3 June 1993. The defendant now effectively abandons-its defence, so the defendant has fulfilled its promise and, theoretically, the work done between 16 March and now could have been avoided. Mr Andrews, who appears for the defendant, asks for costs in favour of the defendant from 16 March at the latest. Mr Douglas in response submits that the plaintiff was reasonable in continuing with the prosecution of the matter after 16 March because of the possibility that the Edgar appeal might fail. There is something in that, but in the context of my\· present discretion, I consider it would have been preferable overall to wait for what turned out to be the three months to judgment. I am quite conscious that time could have drifted on, but I am also conscious of the probability that the defendant had made its compliant position plain well before March. I have in mind what its principal solicitor had said on 16 December 1992. The defendant's subsequent participation in various orders after 16 December 1992 was, of course, a consequence of the plaintiff's refusal then or failure to accept the position suggested by the defendant's solicitor. 2 ORDER 10 20 40 50 60 0 0 (-, \) -- 2 of 3 -- '~ 119693 evs (O'Sullivan DCJ) In terms of ultimate fairness, I think what I should do is to give the plaintiff its costs up to 16 March 1993, leaving the parties then to bear their own costs from that date onwards. I have amended the order to reflect that and I make an order then in terms of the draft which I have initialled. 10 ( ~ \ ' 20 30 u 40 50 60 3 ORDER -- 3 of 3 --