Query Indemnity/Standard Costs on summary judgment and application ‘thrown away’

 Febray Pty Ltd v Equititour Pty Ltd & others; Hutchinson v Equititour Pty Ltd & others [2009] QDC 329

His Honour Rackemann DCJ refused to exercise his discretion in respect of awarding indemnity costs both in respect of summary judgment and the ‘costs thrown away’ on the adjourned application, in circumstances whether summary judgment initially had be given in respect of the first defendant, but pursued by the plaintiff in respect of the balance of the defendants. Ultimately, summary judgment was entered against the plaintiff in respect of the balance of the defendants as well.

The hurdle not overcome by the plaintiff was the action was time barred as the limitation period (non-personal injuries) had expired and proceedings could not be cured by proposed amendments and affidavit material.

His Honour noted at paragraph 8:

[8] The court has express power to order costs to be assessed on an indemnity basis[2]. That is not, however, the usual order. A mere lack of success on the part of the plaintiffs is not sufficient to justify an order for costs on an indemnity basis. That is so even if summary judgment has been given. The court must be persuaded to depart from the usual order that costs be assessed on a standard basis. The irresponsible pursuit of proceedings which cannot succeed because of a known legal impediment or which are otherwise hopeless may warrant an order for costs on an indemnity basis[3]. It was submitted that, properly advised, the plaintiffs ought not to have persisted once the limitation point was taken and they were given an opportunity, after the decision in Dustar, to bring the proceedings to an end.

 

His Honour noted there were somewhat different factual matrixes with the other defendants even though ultimately, his Honour was persuaded to enter summary judgment for the balance of the defendants:

[13] Whether those differences ought to have led to a different conclusion than that reached by Martin J in Dustar was the subject of extensive and competent argument by able Counsel, including Senior Counsel. While I ultimately came to the conclusion that judgment ought be given, as it had in Dustar, I do not consider that the plaintiffs acted irresponsibly by seeking to resist that conclusion and I am unpersuaded to exercise my discretion to award costs on other than the standard basis.

 

In respect of the application for indemnity costs for the ‘costs thrown away’ his Honour concluded:

[17] The costs thrown away were incurred by reason of the adjournment. That adjournment was granted because there was an inconsistency between the plaintiffs’ stated and pleaded cases and because deficiencies had been identified in the affidavit material. Those deficiencies ought to have been identified by the plaintiffs in advance of the initial hearing. That their failure to have done so led to an adjournment justifies an order for costs. That circumstance, however, does not, of itself, persuade me that those costs ought to be assessed on an indemnity basis. The plaintiffs did use the adjournment for its intended purpose, that is, to formulate proposed amendments to its pleading and to file further affidavit material. That material was also ultimately found to be deficient and, in one respect, unsatisfactory. However, that does not lead me to the conclusion that the plaintiffs’ acted irresponsibly in seeking the adjournment from which the costs flowed. I will direct that those costs also be assessed on the standard basis.

 

Brisbane Barrister – David Cormack

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