DISTRICT COURT OF QUEENSLAND
CITATION:
Bendigo & Adelaide Bank Limited & Anor v Myrteza [2018] QDC 19
PARTIES:
BENDIGO AND ADELAIDE BANK LIMITED, ACN 068 049 178 (First Plaintiff)
ABL NOMINEES PTY LTD, ACN 106 756 521 (Second Plaintiff)
AND
DUKOS MYRTEZA (Defendant)
FILE NO/S:
DC No 4264 of 2017
DIVISION:
Civil
PROCEEDING:
Application on the papers, without oral hearing
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
5 March 2018
DELIVERED AT:
Brisbane
JUDGE:
Porter QC DCJ
ORDER:
The first plaintiff pay the defendant’s costs of the applications filed 23 March 2017 in Magistrates Court proceedings number M5420/16.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the first plaintiff commenced proceedings in the Magistrates Court of Queensland against the defendant - where the plaintiffs applied to this Court to have the proceedings transferred to this Court – whether the first plaintiff should be required to pay costs of the two applications and on an indemnity basis.
COUNSEL:
R Kipps for the plaintiffs
A Morris QC and S Trewavas for the defendants
SOLICITORS:
Results Legal for the plaintiffs
Australian Law Partners Pty Ltd for the defendants
Background
The background to this matter is as follows.
On 13 June 2008 the Defendant applied in writing to the Second Plaintiff to finance an investment in the Great Southern 2008 Diversified Olives Income Project.
On 18 November 2016 the First Plaintiff commenced proceedings in the Magistrates Court of Queensland against the Defendant claiming that it was the successor in title of the Loan Deed in respect of that finance.
On 9 December 2016 the Defendant sought particulars of the assignment to the First Plaintiff. The First Plaintiff responded on 13 December 2016.
On 17 January 2017 the Defendant complained about the particulars provided, and filed a Defence which did not admit the assignment.
On 7 February 2017 the First Plaintiff served further particulars noting that it could not provide further particulars “within the time limited for filing this pleading”. The covering letter foreshadowed further enquiries were being undertaken, and noted that the Second Plaintiff was wholly beneficially owned by the First Plaintiff. The Defendant therefore knew that an attack on the chain of assignment had little ultimate effect in the disposition of a dispute about title to the loan.
On 9 March 2017 the Defendant again pressed his complaint about the particulars of assignment, and foreshadowed an application.
On 10 March 2017 the Plaintiffs responded proposing that the Second Plaintiff be joined to the proceeding.
On 14 March 2017 the Defendant responded to the effect that unless particulars were provided then the Defendant would apply for the Claim to be struck-out and that the Defendant “would expect to see a draft pleading” for consideration.
On 21 March 2017 the Plaintiffs provided a draft amended Statement of Claim and requested that the Defendant consent to orders that the Second Plaintiff be joined and that there be leave to file an amended Claim.
On 21 March 2017 the Defendant refused to consent.
On 23 March 2017:
(a)the Plaintiffs applied inter-alia for:
(i)an order that the Second Plaintiff be joined to the proceedings;
(ii)an order that the Plaintiffs have leave to file an Amended Claim and Statement of Claim substantially similar to that which was provided on 21 March 2017; and
(iii)an order that the Defendant provide a copy of an opt-out notice he allegedly gave to M+K Lawyers.
(b)the Defendant applied inter-alia for:
(i)an order that the Statement of Claim be struck out;
(ii)alternatively, an order for summary judgment in favour of the Defendant; and
(iii)alternatively, an order for particulars of the assignment.
The covering letter serving the Plaintiffs’ application conceded that the Defendant would be entitled to costs thrown away by reason of the amendment, and again invited the Defendant to consent.
On 19 April 2017 the Plaintiffs foreshadowed a deed of assignment was to be executed, and sent a further proposal to the Defendant to dispose of the application. That letter also served an affidavit which explained that the Plaintiffs’ staff had searched for journal entries dealing with the assignment but had not been able to locate them within the time limited for providing the affidavit. On 20 April 2017 the Defendant rejected the proposal.
On 21 April 2017 the applications were adjourned to 19 May 2017, with costs reserved.
On 11 May 2017 the foreshadowed deed of assignment between the Plaintiffs was executed.
On 19 May 2017 the application was returnable but was stood over to a date to be fixed pending the Plaintiffs delivering a further amended statement of claim for the Defendant’s consideration.
No steps were taken in respect of the litigation until 6 November 2017.
On 6 November 2017 the Plaintiffs applied to this Court to have the proceedings transferred to this Court, for leave to amend, and for the Second Plaintiff to be joined.
On 14 December 2017 orders were made substantially to the effect sought in the Originating Application, including leave to join the Second Plaintiff and leave to amend the Statement of Claim. Proposals to this effect were, as noted above, repeatedly put to the Defendant prior to 14 December 2017.
The Defendant contends that the First Plaintiff should be required to pay costs of the two applications in the Magistrates Court and on an indemnity basis. The First Plaintiff contends the costs of the applications should be costs in the proceedings.
The Defendant’s application filed 23 March 2017
The Defendant submits that the critiques of the First Plaintiff’s pleading which underpinned the Defendant’s application in the Magistrates Court were shown to be justified by the amendments made to the pleading. To that can be added this observation: the case as now advanced by the Plaintiffs depends on an assignment which was not executed until after the Defendant’s application had been filed and after the first proposed amended pleading to address the Defendant’s complaints had been provided.
In my view, the Defendant’s attack on the pleading as formulated at the time of the application was vindicated by the amendments and subsequent execution of the deed of assignment. Accordingly, the First Plaintiff is ordered to pay the costs of the Defendant’s application filed 23 March 2017.
As to the question of the basis of that order, it might be accepted that the First Plaintiff could have conducted matters more efficiently, both prior to commencement and in response to the complaints about the pleading and particulars from the defendants, in considering the standing issue. However, the standing issue, while important, was a formal matter capable of being addressed and it was addressed. It is no different in substance from any other point in a pleading picked up by a vigilant defendant and accepted by a plaintiff as requiring attention. There is no suggestion that the point was one which would ultimately have made the claim entirely untenable or an abuse of process. The First Plaintiff’s conduct otherwise falls well short of that which would justify an order for indemnity costs.
The First Plaintiff’s application filed 23 March 2017
It seems unlikely that the First Plaintiff’s application in the Magistrates Court to join the Second Plaintiff and for leave to file the amended pleading would have caused much by way of cost to the Defendant. However, as the Defendant rightly submits, the application in the Magistrates Court was overtaken by the application determined by me on 14 December 2017. The costs of that application have been dealt with as costs in the proceedings. The earlier application therefore turned out to be unnecessary. In those circumstances, I do not see why the Defendant should not have its costs of that application.
Again, I cannot see any reason why those costs should be on the indemnity basis.