| [2017] QDC 99 |
DISTRICT COURT OF QUEENSLAND
CIVIL JURISDICTION
JUDGE DORNEY QC
No 2754 of 2010
CATHEDRAL PLACE COMMUNITY BODY CORPORATE Applicant
and
PROPRIETORS CATHEDRAL VILLAGE BUILDING UNITS PLAN 106957 Respondent
BRISBANE
12.00 pm, THURSDAY, 20 APRIL 2017
JUDGMENT
.
HIS HONOUR: This is the decision in the costs part of an application brought in District Court Registry proceeding No. 2754 of 2010 between Cathedral Place Community Body Corporate v The Proprietors of Cathedral Village Building Units Plan 106957.
I will just give a brief history to the particular matter. I handed my decision down some two weeks after the hearing date (on the 12th and 13th of September 2016) on the 27th of September 2016. From searches I have caused to be made, the Registry then received the file back on that particular date, namely, the 27th of September 2016. The second of the orders that I had made on that particular date was that both parties have leave to file submissions on costs, if any, by 4 pm on 30 September 2016. In a timely way, both parties filed their submissions on costs by that particular time. The file was not returned to my Chambers and, I must admit, was not sought by me or my Associate to be returned to my Chambers. Therefore, a slip occurred in the proper proceeding in dealing with the costs part of this particular application. I accept full responsibility for the delay which has occurred and apologise, where necessary, to the parties.
Turning then to the substance of the costs part of this application. Rule 681 of the Uniform Civil Procedure Rules 1999 deals with costs in this particular situation. Subrule (1) of that rule states that:
Costs of a proceeding –
and the next phrase is emphasised:
…including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.
Subrule (2) of that particular rule states that:
Subrule (1) applies unless these rules provide otherwise.
It will be noted that the relevant “event” for this application is the outcome of the application (in which I ordered that the amended application filed 19 May 2016 was dismissed). The application was brought pursuant to rules 483 and 484 of the UCPR. It should be noted that there were originally nine questions proposed. That is – as is obvious from my reasons in paragraph [39] - Question 9 was abandoned for the purpose of this application; and therefore eight questions remained.
The factors which were relevant to the eventual determination were set out in paragraphs [32] to [37] (inclusive) of my reasons. I do not, obviously, intend to read all of those - but I will highlight a number of them because they bear upon the outcome on costs. The first is that the matters which are important are considerations of utility and economy, case management and the interests of justice. Next, the order must be made on concrete facts either established or agreed for the purposes of quelling a controversy between the parties so as to produce a conclusive or final
judicial determination of the issue which is of real, not hypothetical, importance to the determination of the controversy. Next, it is a cautious approach which should be adopted to the resolution of an application such as this. Then next, the outcome depends much on the facts at hand. And the final two aspects are these: first, the separate determination of the question should not be attempted where there is uncertainty inherent in the definition of the facts upon which the substantive question must be determined; and, secondly, if the questions involve issues of fact that need to be determined or proved and the Court cannot see, on the basis of the material presently before it, that the facts can be properly determined then, it is inappropriate to make the order.
The real difficulty for the applicant/defendant in this case, as revealed in those particular reasons, was the unexamined disclosure of many thousands of documents. In the reasons for the decision, I estimated the number to be some 8,500. The applicant/defendant in its submissions suggested there were some 7,000 pages. We both agreed there was originally some 40,000 documents (or pages) which were indicated to be relevant, which were then reduced to the numbers that I have just mentioned.
It can be seen that the determination was not because of the volume that was left, whether it be 7,000 or 8,500, but the unexamined nature of those particular documents. Being unexamined, those documents could – and I stress the word “could” – have supported the contentions of the respondent/plaintiff about what interpretation should be placed upon the various questions that were posed for the Court’s determination. I acknowledge that originally there was some lack of clarity in the respondent/plaintiff’s case; but I have determined that that was resolved as the dispute came to be properly agitated. And, in particular, I refer to the fact that the Outlines substantially examined the final issues which were between the parties in a way that led to better clarity.
It is also important to note that this application and the costs with respect to it cannot be determined simply on whether or not adequate disclosure has been made with respect to the thousands of documents that I have mentioned. Those really are disclosure questions that must be determined at some other time. And I stress again that it is not the volume of the documents in question but the unexamined nature of them that led to the concerns that I have about what the true facts were which would underlie the questions of law and of mixed fact and law that had to be determined.
Accordingly, it was the real issue of incomplete understanding of what the relevant facts were which was appropriately determinative in this particular case.
The applicant/defendant raised the question of unfairness, relying upon the so-called “triple penalty” (that is, that if it lost on this application and the circumstances were such at trial that it would lose because of the outcome and lose again because of the relationship between the two parties, then that was something that ought be borne in mind in this determination).I determine that any so-called triple penalty is simply a product of the circumstances of this case. What I was required to determine was, on
the evidence that I had before me and on the nature of the evidence available to me, whether I could have made a decision that the questions could be properly determined. As I intimated in the later paragraphs of my reasons, particularly in paragraphs [60] and [61], what was important in my determination was, in fact, the nature of the documents in question which I have repeated so many times during these reasons.
I found, which is set out at paragraph [61], that this was thus not an appropriate case for the determination of separate questions to be decided.
Turning then to the issue of costs, in paragraph [62] of the particular reasons, I intimated that, since the applicant/defendant had not succeeded, I formed the preliminary opinion that it should pay the costs of the application on the standard basis. Nevertheless, I gave both parties leave to file the submissions to which I have referred. I see no reason to change from the intimation that I gave there. As I have indicated, I do not think that, as argued on all the circumstances which were put before me, it could be said that this was an appropriate case for that.
Before I make the order, I draw attention to the fact that there was an issue of reserved costs. On the 19th of May 2016, Judge Andrews SC made a number of orders. Included among those orders was leave to amend the application but also he made a decision reserving costs of that particular day to the final determination either of the application or of this proceeding in full. I think it is appropriate, as has been urged upon me by the respondent/plaintiff, that I determine that matter of costs as well.
Since there is nothing on the material which distinguishes that particular order from the eventual order that is intimated to be made in terms of its relevance to the outcome, I think that those costs must follow the orders that I otherwise make on the application in general.
Accordingly, the orders and directions I make are as follows:
(1)it is ordered that the defendant pay the plaintiff’s costs of the application filed 26 April 2016 (as amended on 19 May 2016) including the costs reserved by the order of Judge Andrews SC on the 19th of May 2016;
(2)it is directed that the Registrar inform the parties of the order and direction made.
I will also indicate at this stage that these reasons will be revised by me and will be eventually published.
Thank you. Adjourn the Court.
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