B&K Holdings (Qld) Pty Ltd v Garmin Australasia Pty Ltd

Consideration 2 Naturally enough, the successful applicant (B&K) seeks an order for costs in its favour. It relies upon the general principle that costs "follow the event" and that it had been successful in defending the application. It submitted that the respondents would have known that orders for summary judgment are not given lightly and, as the matter was complex, the respondent necessarily faced difficulty in succeeding on the application. 3 Garmin Australasia Pty Ltd (Garmin) submitted that a relevant circumstance in this case was that B&K's opposition to its summary judgment application was bound up with B&K's application for leave to amend its statement of claim. It was said that the application to amend and the summary judgment application were "intimately entwined". As was noted in the principal reasons, the success of the application to amend depended upon a failure of the summary judgment application. Garmin submits that allowing the application to amend was an indulgence in respect of which B&K should bear the costs. It is further said that it is now difficult to disentangle the costs involved in the summary judgment application with the costs relating to the amendment application. There is force in that submission and it ought to be accepted although, it must be noted, the scope of the summary judgment application was broader than the application to amend. 4 Garmin relies upon the proposition that in the ordinary course a party who opposes an application to amend a pleading should not be deprived of, or be ordered to pay, the costs of the application unless the opposition was unreasonable. Reliance was had on the observations of Pagone J in J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Ltd (No 4) [2015] FCA 218 where his Honour said at [5]: …The party successfully seeking leave asks for an indulgence to which it is not entitled as a right and, therefore, is usually required to pay the costs of the application for leave and the costs thrown away by reason of the amendment: Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; Media Ocean Limited v Optus Mobile Pty Ltd (No 6) [2009] FCA 1319, [34]; Servcorp Ltd v Nuclei Ltd [2011] FCA 1229, [11]. An unsuccessful party opposing the grant of leave may, however, be deprived of its costs or may be ordered to pay the costs of the application for leave if that party has "unreasonably opposed" the application: Public Trustee v Nash (1921) 38 WN (NSW) 142; Media Ocean Limited v Optus Mobile Pty Ltd (No 6) [2009] FCA 1319, [34]. 5 There is significant force in Garmin's submission in this respect and it cannot be said that its opposition to the amendment was in any way unreasonable. So much is recognised in the principal reasons: B & K Holdings Pty (Qld) Pty Ltd v Garmin Australasia Pty Ltd [2019] FCA 64, [48]. 6 Next Garmin relies upon the observations of Pagone J in J & A Vaughan Super at [8] where his Honour considered the question of costs in interlocutory applications which, although unsuccessful, may by the end of the trial appear to have been correctly advanced. His Honour referred to Whitehall Holdings Pty Ltd v Custom Credit Corporation Ltd (unreported, Supreme Court of Western Australia, Ipp, Pidgeon and Owen JJ, 19 June 1992). There, Ipp J identified that the usual order where an application for summary judgment is dismissed is that each party's costs be in the cause so that the party successful at trial recovers them. An exception was identified to that rule where the application for summary judgment is dismissed and ought never to have been made. 7 Whilst the discretion to award costs in this Court is untrammelled and ought not be confined by any rigid rules, the observations in the abovementioned cases provide sound principles in the classes of case to which they relate. Here, Garmin's application as not unreasonably made. Indeed, as the principal reasons show, it only fell slightly short of success. Apart from that it highlighted a number of significant deficiencies in B&K's evidence which existed even though the parties were purportedly prepared for trial. 8 In the circumstances, and in particular because it is far from clear that the applicant will be successful at trial, it would be precipitous at make an order in favour of B&K in respect of the summary judgment application. Moreover, as matters transpired, the application became, more or less, a necessary step in the proceedings because it identified the evidential deficiencies in the applicant's case which, no doubt, would necessitate rectification at some point in time. 9 Because the application for summary judgment was initially stymied by the applicant seeking to amend its pleading, both parties acknowledge that an appropriate date in respect of the award of costs should be to award those incurred after 28 June 2018. That was the date of the filing of the application to amend. 10 In the circumstances I accept the competing considerations identified above weigh in favour of making an order that all of the costs relating to Garmin's application and B&K's application to amend subsequent to 28 June 2018 should be costs in the cause. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington.