DISTRICT COURT OF QUEENSLAND
CITATION:
Mangosteen Orchard Pty Ltd v Zieth & Anor (No 2) [2021] QDC 123
PARTIES:
MANGOSTEEN ORCHRD PTY LTD (CAN 160280811)
(applicant)
v
PETER JAMES ZIETH AND JULIE ANN ZIETH
(respondents)
FILE NO:
0073 of 2021
DIVISION:
Brisbane
PROCEEDING:
Application
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
24 June 2021
DELIVERED AT:
Brisbane
HEARING DATE:
19 February 2021 and 24 June 2021
JUDGE:
Sheridan DCJ
ORDER:
1. The Originating Application is discontinued.
2. The respondents pay the applicant’s costs of the Originating Application and the application up to and including the appearance on 19 February 2021 but excluding the costs of and incidental to the hearing on 19 January 2021 and excluding the costs of the independent solicitor.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where plaintiff brought an originating application and an application seeking interlocutory relief – where orders made for delivery up of certain items of equipment – where respondents made concessions certain items of equipment were the property of the applicant – where declarations as to possession and ownership of the equipment made in favour of the applicant – whether respondents should pay applicant’s costs of the proceedings
LEGISLATION:
Uniform Civil Procedure Rules 1999 (Qld), r 681, r 284
CASES:
Mio Art Pty Ltd v Macequest Pty Ltd & Ors (No 2) [2013] QSC 271, cited
COUNSEL:
C Ryall for the respondents
SOLICITORS: D Edwards, CBC Lawyers, for the applicant
Vandeleur & Todd Solicitors for the respondents
On 19 February 2021 the Court heard an application by the applicant for an order as to costs of the interlocutory application for an injunction filed by it on 8 January 2021.
No order was made at the conclusion of that hearing as to costs nor any orders for the taking of further steps in the proceedings on the basis that the parties wished to be given time to have discussions in an attempt to resolve all issues between them; the issues having been identified as a potential claim by the applicant for the missing items of equipment, a potential claim by the applicant for damage to its equipment, whether there was a lease or licence agreement between the parties and whether it was breached, the respondent’s entitlement to storage fees and the respondent’s claim that the applicant had damaged the respondent’s equipment and/or property.
The parties have not been able to resolve the matter generally. The applicant now seeks an order for the discontinuance of the Originating Application and for the Court to make the order as to costs of the interlocutory application. The respondents oppose the discontinuance of the Originating Application. It would seem that is on the basis that the respondents may wish to pursue a counterclaim against the applicant. The draft order proposed by the respondents required the delivery by the applicant of a statement of claim, in circumstances where the applicant’s position is that it seeks no further relief in the proceedings.
Some of the history of the matter is set out in my Reasons for Judgment on the substantive application.[1]
[1][2021] QDC 20.
The Originating Application sought a declaration with respect to and an order for the delivery up of 15 items of equipment. The interlocutory application was limited to an order for the delivery up of the items of equipment.
The equipment listed in the annexure to the originating application included the component parts of the equipment (for example item 1, Mangosteen packing line machines including fruit packing line, feeding line, washer, inspection conveyor, weight grader) and a specified number of certain items (for example 500 plastic yellow and red fruit stackable crates).
There has been numerous interlocutory hearings. On 15 January 2021, and upon the usual undertaking as to damages, the applicant was permitted to remove two of the listed items of equipment. On 29 January 2021, upon the usual undertaking as to damages, an order was made permitting Mangosteen to remove from the property several additional items of equipment.
When the matter was before the Court on 19 February 2021, the Zieths conceded that Mangosteen were the owners and entitled to possession of the items of equipment which had been removed from the Farm pursuant to the orders of the Court made on 15 and 29 January 2021 respectively. Given the concessions, by consent, on 19 February 2021 declarations as to possession and ownership of the equipment were made. The making of those orders had been sought in the Originating Application.
The remaining categories of equipment the subject of the Originating Application, being 8 of the items listed in the annexure to the Originating Application, did not appear to be located on the Farm and no order was ultimately sought in respect of those items.
Mangosteen says it is entitled to an order for the whole of its costs of and incidental to bringing the interlocutory application to obtain the equipment. Mangosteen says that the Zieths’ unreasonable behaviour throughout the proceedings and the making by them of untruthful statements justify the making of an order.
On behalf of the Zieths, it is submitted that Mangosteen ultimately did not seek orders in relation to 8 of the items listed in the annexure to the Originating Application. Referring to the decision of Justice Jackson in Mio Art Pty Ltd v Macequest Pty Ltd & Ors (No 2)[2] and r 684 of the Uniform Civil Procedure Rules, it is said that the Zieths should pay only 50% of Mangosteen’s costs of the application.
[2][2013] QSC 271 (Mio Art).
I do not accept that submission. Rule 684 and the decision of Justice Jackson in Mio Art do not support an award of costs on the basis of the percentage recovered of a claim. Pursuant to r 681 costs follow the event, unless there is a reason for the court to order otherwise. I do not accept that the failure to make any order in relation to 8 of the original items of equipment is such a basis. It was necessary to bring the interlocutory application to obtain the orders in relation to the items of equipment ordered to be returned.
The effect of the orders made on 19 February 2021 by consent is that the declaration as to the ownership of certain items of equipment, as sought in the Originating Application, was also resolved in favour of the applicant.
In these circumstances, subject to what follows, the appropriate order is that the applicant have its costs of the Originating Application filed 8 January 2021 and the application filed 8 January 2021.
The qualification relates to three components of costs incurred. The first relates to the costs of and incidental to the attendance before the court on 19 January 2021. The need for that attendance occurred because of the conduct of the applicant in attending on the first inspection. On that occasion, the representatives of Mangosteen attended at the Farm late, showed a disregard for the biodiversity requirements of the Farm and then proceeded to tape record the conversations in circumstances where that had not been foreshadowed and the Zieths objected. The inspection did not proceed and it became necessary for the matter to be mentioned again before me.
At that mention and as a result of the behaviour of the applicant on that first inspection, it became necessary to require the attendance of an independent solicitor at any subsequent inspections.
Both that further hearing and the requirement for an independent solicitor was caused by the conduct of Mangosteen. So Mangosteen should not have it costs of and incidental to the hearing on 19 January 2021 and the costs of the independent solicitor.
Further, since 19 February 2021 there have been a number of directions hearing dates vacated while the parties discussed the further proceedings. That was sensible. There is no basis to visit the costs of those hearings, if any, on either party. Each party should bear their own costs. No order will be made with respect to any costs beyond the hearing on 19 February 2021.
The order for costs should be that the respondents pay the applicant’s costs of the Originating Application and the application up to and including the appearance on 19 February 2021 but excluding the costs of and incidental to the hearing on 19 January 2021 and excluding the costs of the independent solicitor.
In the circumstances, an order should be made for the discontinuance of the Originating Application.