Gunderlong Mackay Pty Ltd & Ors v Simpkin & Ors

• [1] Subsequent to the delivery of the principal judgment on 27th August 2024[1], all parties forwarded further submissions in respect of the form of orders and costs. The submissions showed that there was a clerical error in the principle judgment to be corrected under the slip rule in respect of paragraphs 125 and 162 by the deletion of the reference in 53A in paragraphs 125 and 162, and the inclusion of 53O in paragraph 162.
• [2] Subject to the correction of those errors, the parties were in substantial agreement as to the form of the orders proposed. One minor dispute relates to item53AA which the Defendants admit is owned by the First Plaintiff and is not in the Defendants possession. I decline to make any declaration as to ownership of item 53AA as it is not in disputed that it is the property of the First Plaintiff. There was, however, a significant dispute between the parties as to costs.
• [3] The submission on behalf of the plaintiffs is that the defendants ought to pay their costs of the proceeding on a standard basis. The submission on behalf of the defendants was that the plaintiffs ought to pay 80% of the defendants' costs of the proceedings, to be assessed on the standard basis.
• [4] The plaintiffs submit that:
  1. The word "event" is to be approached distributivity with the consequence that it refers to the event of an issue or of each separate issue, if there is more than one, in the proceeding_: Speets Investments Pty Ltd v Bencol Pty Ltd (no 2)_ [2021] QCA 39 at [13] to [15] (Speets Investments).
  2. In Speets Investments at [16], Bond J stated:

The general approach is that there must be special or exceptional circumstances to warrant depriving a successful party of its costs and the mere fact that the successful party has been unsuccessful on some issues will ordinarily not be sufficient to do so: Courtney v Chalfen [2021] QCA 25 at [5] . On an appeal, for example, where a party has succeeded on one of two ways to the same outcome, the Court of Appeal might well regard the costs of the second way on which that party failed as not so distinct conceptually or practically as to warrant making a costs order which reflected that party's failure: Chief Executive, Department of Transport and Main Roads v Cidneo Pty Ltd at [1]. On the other hand, one circumstance in which it might be appropriate to award costs of a particular question or part of a proceeding is where that matter is definable and severable and has occupied a significant part of the proceeding: see Courtney v Chalfen, in which the Court of Appeal referred with approval to the decision of McMurdo J (as his Honour then was) in BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No 2) [2009] QSC 64 at [8].

• [5] The plaintiffs point out that they did succeed in recovering the $15,352.03 in respect of the debt claim. That is so. However, the plaintiffs' claim[2] had the total level of indebtedness up to $149,099.13 before being reduced down to $130,859.26. Viewed in that manner, the plaintiffs succeeded in claiming 11.73% in respect of its debt claim. Gunderlong succeeded in claims for declarations and detinue in respect of the 15 nominated items, and further, the third plaintiff, Mrs Simkin, succeeded in respect of one half of item 67, a total of 15 and half items all up. As pointed out in paragraph 94 of the principal judgment, the plaintiffs' maximum claim was 184 items before 67 items were reduced, leaving 117 items in dispute. That is, the plaintiffs succeeded in about 13.2% of the items claimed in detinue, conversion, and bailment.
• [6] It is importantly to record that, the plaintiffs did have success in respect of some significant items of plant, namely the Kybota excavator, the Caterpillar D8R bulldozer, cutting bar for the D8R bulldozer, as well as half of the aforementioned Kedron caravan. As reflected in paragraph 95 of the principal judgment, some of the items being claimed were quite large. That is, the D8R bulldozer being valued at $250,000, whereas some items are quite small, such as item 53F the GEO piping said to be valued at $150.
• [7] As reflected in paragraphs 37 to 40 of the principal judgment, the most significant by a very long way, financial claim being made by the plaintiffs was a claim in respect of a constructive trust on Craig Simpkin's property at 678 Barry Lane. The plaintiffs' case being that the land had a value in the vicinity of $2 million. The $2 million claim in respect of the constructive trust of the land at 678 Barry Lane dwarfed the next largest claim brought in the case, which was in respect of the conversion and detinue of the D8R bulldozer said to have a value of $250,000.
• [8] It seems to me, therefore, whether considered on a numerical basis in respect of various items and claims or a monetary basis, it is reasonable to conclude that the plaintiffs have succeeded in respect of approximately 10-12% of their claim, and the defence succeeded in respect of 88-90% of its case.
• [9] In Kosho v Trilogy Funds Management[3] Applegarth J said at 5-7:

"[5] Ordinarily, the fact that a successful plaintiff fails on particular issues does not mean that it should be deprived of some of its costs.4 As Muir JA observed in Alborn v Stephens, "a party which has not been entirely successful is not inevitably or even, perhaps, normally deprived of some of its costs." Still, a successful party which has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them.

[6] The proposition that a successful party will be deprived of its costs or be ordered to pay part of the other parties' costs only in special circumstances or for good reason is well-established. Principles or even rules of thumb which refer to "a successful party" beg the question of the standard by which success is to be measured. Is a plaintiff which makes a multi-million dollar claim on a variety of legal grounds but obtains a judgment for nominal damages, namely $10, based upon limited success on only one of the various causes of action pursued by it successful?

[7] In one sense such a plaintiff has been successful, namely in establishing the defendant's liability, and unsuccessful in establishing an entitlement to anything of value. Equally, it might be said that the defendant in such a case has been successful, namely in defending the plaintiff's multi-million dollar claim for damages, and that the plaintiff's success in establishing a single breach of contract is no real success at all in litigation which has a commercial objective, namely an award of substantial damages." [footnotes omitted]

• [10] In Interchase Corporation Limited (in liquidation) v Grosvenor Hill (Queensland) Proprietary Limited (No 3) [2003] 1 Qd R 26 at 84, McPherson J said:

"[84] These authorities show that the structure and language of the new r. 689(1) has not introduced any marked change in the practice governing awards of costs in Queensland. Costs are, as they were before, in the discretion of the court. They follow the "event" which, when read distributively, means the events or issues, if more than one, arising in the proceedings unless the court makes some other order that is considered "more appropriate". It is not by this intended to suggest that there has been a reversion to a regime under which costs of separate issues must now be determined. The practice of doing so was responsible for so much litigation in England that the rule was eventually altered to place costs within the general discretion of the court or judge: see Judicature Act 1925, s. 50(1). Rule 689(1) may fairly be regarded as producing the same result as prevailed before it came into force, although it now does so in somewhat different language and is structured in a slightly different way. Few civil matters are now tried by jury in Queensland, and it ought not to be assumed that, by introducing the new rule in a form that now omits reference to such trials, a fundamental change in the practice of awarding costs was intended."

• [11] In my view, the plaintiffs having succeeded in approximately 10% of their claim and the defendants having succeeded in respect of 90% of their case, the issue which arises is whether there ought to be cross-orders in respect of costs, with the defendants paying 10% of the plaintiffs' standard costs and the plaintiffs paying 90% of the defendants' standard costs, or whether there ought to be a set-off.
• [12] It seems to me that it is more consistent with the principles set out in r 5 Uniform Civil Procedure Rules 1999 (Qld) to adopt an approach which has a set-off resulting only in one costs order, to avoid, in an extremely complex case, the necessity for itemisation of two lengthy bills of costs. This is the approach adopted by Dutney J in Manwelland v Dames [2000] QSC 432, referred to with approval by Applegarth J in Kosho (supra) at 22.
• [13] Given that in several respects the evidence of the first defendant, Craig Simpkin, was unhelpful to the efficient conduct of the litigation, it seems to me in a practical sense there ought to be some erring on the side of conservatism in concluding that a fair result is for an order that the 10% costs in respect of the plaintiffs' claim be offset against the 90% of successful costs in the defence claim.

[1] Gunderlong Mackay Pty Ltd & Ors v Simpkin & Ors [2024] QSC 194.

[2] Gunderlong Mackay Pty Ltd & Ors v Simpkin & Ors [2024] QSC 193, at [36].

[3] Kosho Pty Ltd & Anor v Trilogy Funds Management Ltd, Trilogy Funds Management Ltd & Ors v Fujino (No 2) [2013] QSC 170.