Costs: between late joinder defendant & on transfer to the Supreme Court

Michael Vincent Baker Superannuation Fund Pty Ltd v Aurizon Operations Limited & Anor (No 2) [2017] QSC 63

Mullins J

In Michael Vincent Baker Superannuation Fund Pty Ltd v Aurizon Operations Limited & Anor [2017] QSC 26 the plaintiff succeeded in proving that both the first and second defendants were liable for nuisance. The plaintiff was successful in obtaining an injunction against the second defendant and an award of $75,000 in damages against each of the first and second defendants.

The matter returned to determine costs as against the first and second defendants. Relevantly, the second defendant was joined to the proceedings on 30 September 2014. Therefore, the plaintiff sought that the first and second defendants each pay the plaintiff’s costs in relation to the proceedings against it respectively.

The first defendant proposed that it pay the plaintiff’s costs until 29 September 2014 while the second defendant proposed to pay the plaintiff’s costs from 30 September 2014.

The defendants raised further issues in relation to the costs order. They were:

  • Whether the relief could have been given in the District Court;
  • Orders dealing with the plaintiff’s costs of reports not relied upon;
  • Whether the plaintiff should pay the costs of its amendments; and
  • How the order should accommodate the joinder of the second defendant.

Relief in the District Court

To seek transfer of the proceedings from the District Court to the Supreme Court, the plaintiff relied on a report estimating that the cost of remediating the soil erosion was $334,00 which at the time was in excess of the monetary limit of $250,000 of the District Court. Deciding this issue, Mullins J stated:

[10] At the time the proceeding was commenced, the District Court’s jurisdiction to restrain nuisance to land was relevantly where the value of the land did not exceed the monetary limit which was specified as $250,000: s 68(1)(b)(xii) and s 68(2) of the District Court of Queensland Act 1967 (Qld) (the Act)…

[11] The term “land” must be construed in the context of s 68 of the Act. The description of “land” that has been selected for the purpose of determining jurisdiction is the land that is the subject of “the most recent valuation” and if there is no such valuation then the current market value at the relevant time… I consider that the term “land” for the purpose of determining the jurisdiction of the District Court must be the land the subject of the Valuer-General’s valuation and not that part of the land affected by the nuisance within the lot or lots of land the subject of the Valuer-General’s valuation which part might only be determined after the trial.

[14] The position at the conclusion of the trial was that there was no evidence before the court that would enable a finding to be made the land had an unimproved value within the monetary jurisdiction of the District Court at the time the proceeding was commenced. It is the defendants who are asserting reliance on r 697. It was for the defendants therefore to adduce the evidence to invoke r 697. When the reasons were published, it was apparent from the submissions made on that occasion that the question of whether the District Court had jurisdiction at the time the proceeding commenced to grant the relief the plaintiff obtained ultimately would be an issue in relation to costs of the proceeding. The defendants did not then seek to adduce evidence on this issue. They have therefore not succeeded in showing that r 697(3) is applicable. As the issue of whether r 697(3) applies has been the subject of submissions in relation to costs, I propose to conclude that matter by specifying that in relation to the costs against the first defendant, they be assessed on the District Court scale until the transfer of the proceeding to the Supreme Court, when they will be assessed on the Supreme Court scale. The costs recoverable against the second defendant should be assessed on the Supreme Court scale.

Recovery of costs associated with reports not relied on

In this regard, Mullins J stated:

[15] If a report was not tendered by the plaintiff nor relied upon by the plaintiff in the proceeding or at the trial, then it cannot recover the costs of that report on an assessment of costs on the standard basis. No specific order is required to achieve this result. That is a matter for the costs assessment.

Costs of the amendments

As to whether an order should be made that the plaintiff pay the costs thrown away by its amendments, her Honour stated:

[17] Where r 386 and/or r 692 operate to require the amending party to pay the other party’s cost thrown away by the amendments, a specific order that the costs of the success of amendments to the statement of claim be excised from the costs payable by the defendants otherwise to the plaintiff is not required. It is superfluous to spell out the consequence that the amending party cannot recover its costs of the amendment from the other party. That follows as a matter of course from the application of r 386 or r 692.

[21] On the basis the defendants were seeking to limit the plaintiff’s recoverable costs to the District Court scale, the defendants are seeking costs thrown away by amendments to the plaintiff’s pleading to be assessed on the Supreme Court scale by virtue of the plaintiff’s choice to litigate in the Supreme Court. In view of the fact that the plaintiff will recover its costs on the Supreme Court scale from the time when the proceeding was transferred to the Supreme Court, it is unnecessary to make this order sought by the defendants in relation to the costs thrown away by the plaintiff’s amendments which are payable by the plaintiff to the relevant defendant pursuant to r 386 and/or r 692, in the absence of any other order.

Joinder of second defendant with effect from 30 September 2014

Finding that there was no justification to limit the costs order against the first defendant to 29 September 2014, Mullins J stated:

[22] The plaintiff argues that a costs order entitles a plaintiff to costs properly incurred before the commencement of the proceeding which are incidental to instituting the proceeding against the defendant. The second defendant argues that such costs are insignificant, as the case the plaintiff pursued against it was essentially the same as that which the plaintiff had originally brought against the first defendant, but it became necessary to pursue the second defendant, because it had inherited the cause of the nuisance. I accept the second defendant’s argument that this was not the usual case and, in these circumstances, where the second defendant was joined to an existing proceeding as a result of its transaction with the first defendant where the proceeding against the first defendant had been ongoing for some 10 years at the time of the joinder, it is appropriate to limit the costs against the second defendant to the date the joinder took effect.

 

David Cormack – Brisbane Barrister & Mediator

 

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