[1] The plaintiff commenced proceedings by Claim and Statement of Claim ("SoC") for damages for breach of contract or, alternatively, in quantum meruit. In response, the defendants applied to strike out the whole of the SoC, alternatively to strike out specified paragraphs of the Statement of Claim and Schedules attached to it and alternatively again for further and better particulars concerning the same paragraphs and Schedules.
[2] Judgment and reasons were delivered on 24 October 2025.[1] In essence, the defendants succeeded in having one paragraph struck out, with leave given to amend three associated Schedules and another paragraph of the SoC, if that was required by the amended pleading. Each party sought, and was granted, time to provide written submissions on costs on the basis they would be determined on the papers.
[3] In essence the plaintiff contends that given it substantially succeeded on the various applications and, given what it submits is the fact that the success went only to clarification of what is alleged rather than the substance of the Claim, the defendants should pay 95% of the plaintiff's costs of and incidental to the application.
[4] On the other hand, the defendants contend that as they succeeded in the application, which it is contended was an important result in the overall conduct of the proceedings, but while recognising that theirs was a mixed success, the plaintiff should pay 33% of their costs of and incidental to the application. Alternatively, it is submitted that the parties should bear their own costs or, alternatively again, that the determination of costs should be reserved pending the amendment to the SoC so the full effect of the judgment can be understood.
[5] Each party emphasises the "usual rule" at r. 681 of the UCPR that costs follow the event. Each recognise that their success on the application, as a whole, was not complete but seek to assert the primacy of their respective "victory" over that of the opponent. In my view, that is a futile exercise in this instance as there are features which tend each way.
[6] While it is true that the plaintiff successfully defended the primary application which, for the reasons outlined in the primary reasons, may have had grave consequences for the future conduct of the proceedings, and also succeeded on the vast majority of the applications, all of the applications were properly arguable. This is not a case where the costs order should reflect the poor prosects of the application.
[7] Further, the defendants did have some success on the application and would be ordinarily entitled to at least some of their costs of having to bring the application to achieve that success. On the other hand, the prematurity of their applications featured in the reasons why some of the individual applications were refused.
[8] It has often been noted that, in the case of mixed success, the moving party will not usually be deprived of their costs because of a lack of complete success.[2] However, as with anything to do with costs, the justice of the situation is the dominant consideration.
[9] A relevant feature in this matter, a feature not often present in the authorities relied on, the fact it is an interlocutory application brought at a particularly early stage of the proceedings; a Defence had not been filed in response to the SoC. The outcome of the application has not effectively determined the course of the proceedings. It has, hopefully, facilitated some clarity in the future conduct of the proceedings, and in that sense is really a procedural step, although I do not accept the plaintiff's characterisation of the effect of the orders as being of "very minor significance".[3] That submission undermines the significant defect in the pleading at the subject paragraph and the way that paragraph affects the understanding of other aspects of the SoC.
[10] In all of the circumstances, I do not consider it appropriate to make a definite costs order at this time. It is not desirable to try to isolate the induvial issues and make costs orders for and against parties based on their respective success and losses, whether on the importance of the application to the overall application or the time devoted to arguing each. That undesirability applies regardless of whether it were to be done on the material before the Court at the time of the hearing or after the filing of an amended SoC. Further, I consider it inappropriate to require both parties to be denied their costs completely, by making no order as to costs.
[11] Given the early stage of the proceedings and the nature of the orders made, I consider it appropriate to order the costs to be costs of the proceeding.
[2]
[1]Ely Projects Pty Ltd v Stockton and Anor[2025] QDC 151. ("the primary reasons")