Brose v Baluskas & Ors

[3] The plaintiff submits that the defendants should each be responsible for all of the plaintiff's costs in relation to the applications. She submits that the first defendant had only marginal success; the second defendant was in any case seeking an indulgence in relation to the further amended pleadings and in those circumstances the general rule is that the applicant should pay the other side's costs; further an application by the second defendant would have been necessary whether or not the plaintiff opposed the granting of leave; and finally that the application took up considerable time of which only a small proportion related to the issues upon which the second defendant was successful.

[4] The points made by the plaintiff are not without merit, however as expressed in the primary judgment, the second defendant did have some success - albeit minor and not on points that were specifically delineated during submissions - despite opposition by the plaintiff. In the exercise of my discretion, the orders should be as foreshadowed in the primary judgment.

[5] Secondly, the plaintiff requests that the costs be fixed pursuant to the discretion outlined in r 685(2) of the Uniform Civil Procedure Rules (Qld) 1999, as described in Practice Direction No. 3 of 2007.

[6] In respect of this issue, the plaintiff submits that the defendants have been on notice of the plaintiff's requests, including during oral submissions on 24 May 2019. The defendants have not advanced any submissions on the topic. The plaintiff submits that this is an appropriate case to fix costs in view of the approaching trial and the desirability of resolving such issues in a timely way. The application is supported by proper material quantifying the costs on the standard basis at $32,968.56.

[7] The plaintiff also submits that the fixing of the costs at this stage avoids the burden of taxation on the plaintiff, particularly where there are numerous references by the defendants to their impecunious position.

[8] The plaintiff submits that an assessment by which costs are fixed does not require the same process as an ordinary assessment, rather a broad brush is applied.[1]

[9] The relevant costs statement has been prepared by an approved costs assessor and is exhibited to the affidavit material.

[10] In the circumstances it is my decision that the plaintiff's submissions on this topic should be accepted and thus the plaintiff's costs on the applications are fixed in the sum of $32,968.56. The first defendant is responsible for 100% of these costs and the second defendant is responsible, jointly and severally, for 75% thereof.

[1] The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2009] QSC 84; [2009] 2 Qd R 356 at [7] per Martin J.