DISTRICT COURT OF QUEENSLAND
CITATION:
Goldvine Pty Ltd As Trustee For The Cooper No 2 Family Trust v Paris Properties Pty Ltd As Trustee For The Parisi Family Trust & others [2017] QDC 112
PARTIES:
GOLDVINE PTY LTD AS TRUSTEE FOR THE COOPER NO 2 FAMILY TRUST ACN 010 832 578
(plaintiff)v
PARIS PROPERTIES PTY LTD AS TRUSTEE FOR THE PARISI FAMILY TRUST ACN 002 516 949
(first defendant)and
QUESTGALE PTY LTD ACN 099 516 949
(second defendant)and
CASTLESHIP PTY LTD ACN 100 104 201
(third defendant)and
MICHAEL DOMINIC PARISI
(fourth defendant)FILE NO/S:
D53/2015
DIVISION:
Civil
PROCEEDING:
Application on the papers
ORIGINATING COURT:
District Court of Queensland
DELIVERED ON:
8 May 2017
DELIVERED AT:
Southport
HEARING DATE:
On the papers
JUDGE:
McGinness DCJ
ORDER:
The plaintiff pay the defendants’ costs of, and incidental to the proceedings to be assessed on the indemnity basis.
CATCHWORDS:
PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Di Carlo v Dubois & Ors [2002] QCA 225
COUNSEL:
SOLICITORS:
M. R Bland for the Defendants
DCL & Associates for the Plaintiff
QBM Lawyers for the Defendants
On 6 April 2017, I dismissed the plaintiff’s claim for costs or expenses arising on default of the first defendant on a loan agreement, and claim against the other defendants as guarantors. The plaintiff was wholly unsuccessful in its claim. The parties subsequently provided written submissions regarding orders as to costs.
The defendants submit that an order should be made under r 703(1) UCPR for costs, and that costs payable by the plaintiff be assessed on the indemnity basis. The defendant relies on two grounds, namely, the plaintiff’s case had no chance of a successful outcome, and the plaintiff’s conduct amounts to misconduct.
The plaintiff submits any order for costs in favour of the defendant should be on a standard basis because there has been no misconduct on behalf of the plaintiff in bringing the proceedings or otherwise during the conduct of proceedings which would warrant the making of an indemnity costs order. The plaintiff further submits that this was not a case where the plaintiff ought to have determined there was no chance of success and that the findings in the proceedings do not justify the making of an indemnity costs order.
For the reasons stated in my judgment, I am of the view this is a matter where the plaintiff was at least attempting to commit an offence pursuant to s 347 of the Property Agents and Motor Dealers Act (2000). The fact that, because of the terms of the agreement between the plaintiff and Slater, it was unable to commit that offence does not detract from its moral culpability in attempting to do so. In those circumstances, it seems to me that the plaintiff’s conduct, in attempting to commit a criminal offence, can be characterised as wrongdoing for the purposes of the principle in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, where wrongdoing was said to be one of the species of conduct by a party which can justify an order for indemnity costs against that party, though it is also established that in an appropriate case indemnity costs can be awarded for conduct which falls short of actual wrongdoing. That decision has frequently been applied in Queensland, including by the Court of Appeal[1].
[1] For example, in Di Carlo v Dubois & Ors [2002] QCA 225.
In my view, for the plaintiff to attempt to pursue in this proceeding a demand for such a large amount by way of costs and expenses, in circumstances which amounted to an attempt to commit an offence against the 2000 Act, amply justifies an order for indemnity costs against it.
Accordingly I order the plaintiff pay the costs of the proceedings to be assessed on the indemnity basis.