DISTRICT COURT OF QUEENSLAND
CITATION:
Oasis JV Pty Ltd v Armstrong & Anor (No.2) [2017] QDC 177
PARTIES:
OASIS JV PTY LTD
(plaintiff)v
MARK ARMSTRONG
(first defendant)and
TIARNA ARMSTRONG
(second defendant)FILE NO/S:
BD3807/16
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
21 June 2017
DELIVERED AT:
Brisbane
HEARING DATE:
Plaintiff’s submissions dated 9 June 2017; defendants’ submissions dated 16 June 2017
JUDGE:
Smith DCJA
ORDER:
1. I order the defendants pay the plaintiff’s costs of and incidental to the applications fixed in the sum of $5,282.43 but that such costs are to be the plaintiff’s costs in the proceeding.
2. Liberty to apply on the giving of 2 days written notice.
CATCHWORDS:
COSTS – Whether the defendants should pay the plaintiff’s costs concerning an application to strike out a summary judgment- where the plaintiff’s application for summary judgment was dismissed- where defendants’ defence and counter-claim were struck out
Uniform Civil Procedure Rules 1999 (Q) r 171, 681, 687
District Court Practice Direction 3 of 2007
Oschlack v Richmond River Council (1998) 193 CLR 72
Thiess v TCN Channel 9 Pty Ltd (No. 5) (1994) 1 Qd R 157
COUNSEL:
Mr S T Lane for the plaintiff
Self-represented defendants
SOLICITORS:
HWL Ebsworth Lawyers for the plaintiff
Self-represented defendants
Introduction
This is the costs decision consequent upon my decision given in Oasis JV Pty Ltd v Armstrong & Anor.[1]
[1] [2017] QDC 142
Submissions
The plaintiff submits that the defendants should pay its costs on an indemnity basis or alternatively on the standard basis. It is further submitted that the court should fix the costs in accordance with r 687(2) of the UCPR and Practice Direction 3 of 2007. It submits that the defence contained numerous admissions; the defendants were put on notice of the deficiencies in the pleading; and despite the dismissal of the summary judgment application it was substantially successful.
The defendants submit that the plaintiff’s application for summary judgment was premature; they are self-represented; the case is complex and mediation would have been more appropriate. As two of the plaintiff’s applications have been dismissed the plaintiff should pay their costs.
Disposition
Rule 681(1) of the UCPR provides that:
“Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court otherwise orders.”
Rule 171(2) of the UCPR also contemplates that costs may be awarded on an indemnity basis when a pleading is struck out. A court maintains a discretion with respect to costs.[2] Also in the absence of special circumstances, a court exercises its discretion to award costs to the successful party.[3]
[2]Oschlack v Richmond River Council (1998) 193 CLR 72
[3]Thiess v TCN Channel 9 Pty Ltd (No. 5) (1994) 1 Qd. R. 157 at 207-208
In this case it was clear that the defendants were put on notice concerning the difficulties with their pleadings. The defendants did not rectify the issues with their pleadings. Further, the defendants advanced a case against the plaintiff which was only available against Sovereign which cause of action was specifically struck out.
On the other hand, the plaintiff was unsuccessful in its summary judgment application against the defendants.
Overall it seems to me that the plaintiff was more successful than the defendants.
In all of the circumstances I have determined to order the defendants to pay 50% of the plaintiff’s costs on the standard basis fixed by reference to the affidavit of Mr Tolhurst but to order those costs be the plaintiff’s costs in the proceedings.
The amounts referred to by Mr Tolhurst seem reasonable and are not challenged by the defendants.
The orders are:
1. I order that the defendants pay the plaintiff’s costs of and incidental to the applications fixed in the sum of $5,282.43 but that such costs are to be the plaintiff’s costs in the proceedings.
2. Liberty to apply on the giving on 2 days written notice.