DISTRICT COURT OF QUEENSLAND
CITATION:
Sweetman v Sovereign Realty Pty Ltd & Anor (No. 2) [2017] QDC 28
PARTIES:
KARA ELEN SWEETMAN
(plaintiff/respondent)
v
SOVEREIGN REALTY PTY LTD
(ACN 113 909 989)
(first defendant/first applicant)ALEXANDER HAMID VARIUSH-FAR
(second defendant/second applicant)FILE NO:
123/15
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
District Court at Southport
DELIVERED ON:
17 February 2017
DELIVERED AT:
Southport
HEARING DATE:
Heard on the papers
JUDGE:
Kent QC DCJ
ORDER:
In respect of the application, there be no order as to costs.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INTERLOCUTORY PROCEEDINGS – where the pleadings of both parties were unclear – where, due to the standard of pleadings presented, it was difficult to assess the success of the defendants’/applicants’ application – where, at best, it could be said the defendants/applicants enjoyed partial success – whether the Court should make an order in favour of the defendants/applicants, for costs on the interlocutory proceeding
Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748, cited
X and Y (by her Tutor X) v PA (1991) 23 NSWLR 26, cited
COUNSEL:
No appearance for the plaintiffs
No appearance for the first and second defendants/first and second applicants
SOLICITORS:
ABKJ Lawyers for the plaintiff/respondent
Affinity Lawyers for the first and second defendants/first and second applicants
Slip rule
The defendants submit that the judgment in relation to the defendant’s application published on 16 November 2016 contains an error as to the order touching on paragraphs 10.2 of the plaintiff’s reply, and they seek correction pursuant to the slip rule.
The body of the judgment correctly recorded the order. The cover sheet referred to is merely a narrative, which omitted a small portion of the order. Thus, it can be corrected without reference to the slip rule; the jurisdiction conferred by that rule is not engaged. Further, as there have been no orders taken out of the Registry pursuant to the judgment, there is nothing to correct.
Costs
In the primary judgment, I indicated my present inclination was to make no order as to costs. However, I was prepared to hear argument or receive written submissions on that aspect if required. The parties have made written submissions on the topic of costs and, therefore, it is necessary for me to make a determination in relation thereto.
GST
The defendants submit, in relation to the aspect of the judgment concerned with the GST aspect of the plaintiff’s claim, they should be awarded costs because of the plaintiff’s/respondent’s significant and unexplained delay in retreating from that aspect. In my view, the submissions made on behalf of the plaintiff/respondent at paragraphs 2.1 to 2.10 of the written outline, dated 8 December 2016, are a sufficient answer to the defendants’ submissions on this point. The plaintiff was registered for GST, but this had been cancelled and she endeavoured to have it retrospectively reinstated (which would, if successful, have made the claim prima facie maintainable). The chronology of the plaintiff’s efforts in this regard is set out in paragraph 2.6 of the plaintiff’s outline; the efforts, on the advice received, were reasonable. Accordingly, I do not find that the plaintiff was responsible for significant and unexplained delay in conjunction with unreasonable conduct such as to expose her to a costs application. As outlined in the primary judgment, further costs concerning amendment can be considered at trial; of course, on the present application, this part of the defendants’ claim for relief was dismissed.
Deemed admissions
In relation to the costs concerning the “deemed admissions” issue, the defendants press their application for costs on the basis that, in a mathematical sense, they had substantial success in respect of 17 of 24 challenged sub-paragraphs, equivalent to more than 70 per cent of that aspect of the application. Conversely, as the plaintiff submits, I mentioned that the pleadings were not clear, making this entire exercise complicated.
Some guidance is given in this general area in Hughes v Western Australian Cricket Association Inc,[1] as summarised by Clarke JA in X and Y (by her Tutor X) v PA as follows:[2]
[1](1986) ATPR 40-748.
[2](1991) 23 NSWLR 26.
(a) ordinarily costs follow the event;
(b) in particular circumstances, it may be reasonable to require that a litigant who has succeeded only upon a portion of his or her claim should bear the expense of litigating the other portion or portions; and
(c) circumstances may dictate that a successful party who has failed on certain issues may not only be deprived of the costs in those issues but may be ordered as well to pay the other party’s costs of them.
In this case, the defendants were successful as to a portion of the subparagraphs of the pleading which they challenged (and unsuccessful, as I have noted, on the GST issue, at least in obtaining the orders sought). This is numerically styled as being 17 of 24 subparagraphs; thus, they claim substantial success. In my view, as I outlined in the original judgment, the distribution of success is nowhere near that precise. There has truly been mixed success, and if an attempt were made to divide up the successful versus unsuccessful parts of the defendants’ application by time, effort, length of argument and difficulty of legal reasoning in arriving at a result, in my view the exercise is likely to be so complex as to be impossible,[3] or, if possible, likely to result in an approximately 50:50 distribution rather than the 70:30 for which the defendants contend. If it were 50:50 then, if the defendants were required to pay the plaintiff’s costs as to the aspects where they were unsuccessful, it might be that the competing costs orders would cancel each other out. Of course, I can make no definitive finding in that regard.
[3]The task has not been attempted by the parties with any more precision than referring to the number of subparagraphs as outlined above.
The more important consideration, however, is that in my view the defendants’ success on the application has been limited rather than substantial and it is not possible to find with precision that they have been more successful on balance than the plaintiff; there is no clear “winner” such that costs should follow that event. Thus, as originally indicated, I make no order as to costs.