Partram Developments Pty Ltd v The Registrar of Cooperative Housing Societies [2025] QSC 47

Australian Securities and Investments Commission v Atlantic 3-Financial (Aust) Pty Ltd (No 3) [2008] 2 Qd R 298; [2008] QSC 9, cited

Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119, cited

Bottoms v Reser & Anor (unreported, Cairns SC No 28 of 1998, 29 November 2000), cited

Coshott v Burke (No 2) [2018] FCAFC 81, cited

Fewin Pty Ltd v Burke (No 3) [2017] FCA 693, cited

Hadid v Lenfest Communications Inc [2000] FCA 628, cited

Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738, cited

Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 7) [2018] FCA 1217, cited

• [1] On 27 August 2024 I made orders (CDI 135):

(a) dismissing the plaintiffs' amended application filed 21 March 2024 (order 1);

(b) ordering that the plaintiffs pay the defendant's costs of the application on an indemnity basis (order 2);

(c) providing for certain directions for those costs to be agreed or, if not agreed, fixed by way of a determination on the papers (orders 4 to 7).

Rule 687(2) UCPR allows for the fixing of costs. See also Practice Direction Number 3 of 2007, particularly at [3(a) and (c)].

• [2] The plaintiffs appealed part of those orders (appeal number CA 12651/24) which was subsequently heard and dismissed.
• [3] It is appropriate therefore that I now proceed to fix the indemnity costs as contemplated by the orders of 27 August 2024 and the defendant's application filed 27 August 2024 (CDI 130).
• [4] To that end, the defendant's solicitors wrote to the court on 20 February 2025 (copied to the plaintiffs) seeking to have that occur. The parties were advised that the time limited under order 7(b) of the orders of 27 August 2024 for the plaintiffs to file and serve any affidavit material and submissions which they intended to rely upon in respect of the defendant's application for a fixed costs order was extended to 28 February 2025.
• [5] No reply from the plaintiffs to that correspondence was received by the court. No material has been filed by the plaintiffs in accordance with order 7(b) of the orders of 27 August 2024 (in its original form or as per the extension of time given).

It is appropriate to determine the costs on the papers

• [6] The application for fixed costs is made on the basis that it be determined without oral hearing. Rule 489 of the UCPR provides for such a procedure.

(1) A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing.

(2) If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless -

(a) under rule 491, the court considers it inappropriate to do so; or

(b) under rule 494, the respondent requires an oral hearing; or

(c) under rule 495, the applicant abandons the request for a decision without an oral hearing; or

(d) the Chief Justice or Chief Judge suspends the operation of this rule by direction.

• [7] The structure of rule 489 UCPR is that:

(a) jurisdiction to proceed without oral hearing is granted;

(b) the jurisdiction is enlivened by a proposal by an applicant;

(c) the proposal must be accepted in the absence of the features in rule 489(2)(a)-(d).

• [8] I have already determined that the application is to be determined without an oral hearing. Despite the failure of the plaintiffs to comply with order 7(b) of the orders of 27 August 2024, I do not consider it inappropriate for me to fix the costs without an oral hearing.

• [9] Principles relevant to the fixing of costs can be stated briefly:

(a) when undertaking a lump sum or fixed costs assessment, the court does not apply a process similar to a taxation of costs, but a much broader brush;[1]

(b) a discount may be applied to the sum of costs claimed when making a fixed costs or lump sum order, but the appropriateness of any discount and the amount by which the costs are to be reduced is dependent on the facts of each case;[2]

(c) the court should be astute to avoid both overstating the recoverable costs and underestimating the appropriate account by applying some arbitrary discount to the amounts claimed;[3]

(d) in assessing quantum, "the Court is entitled to take into account the evidence that is before it; its own observations of the proceedings and the judge's own assessment experience";[4]

(e) the power to order a gross sum may appropriately be exercised where the assessment of costs would be protracted and expensive, and in particular if it appears that the party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment;[5]

(f) when exercising the power to fix costs, "the principle that there is greater latitude in determining reasonableness of costs on an indemnity basis than on a standard basis and usually only costs that can be characterised as outlandish should be excluded on an indemnity basis may result in the Court being more inclined to fix costs that are claimed on an indemnity basis where it is apparent the costs are not outlandish".[6]

• [10] As to that last principle, I bear in mind the approach of the Court of Appeal in Amos v Monsour Legal Costs Pty Ltd [2007] QCA 235 which at [29] referred with approval to the approach of the then Chief Justice in Bottoms v Reser & Anor (unreported, Cairns SC No 28 of 1998, 29 November 2000) to the assessment of indemnity costs (footnotes omitted):

"A determination of whether indemnity costs are 'reasonably incurred' and 'of a reasonable amount' within the meaning of those terms in UCPR r 704(3) will involve a consideration, at the time of the assessment of the costs, of all relevant circumstances pertaining in the particular case. As de Jersey CJ noted in Bottoms v Reser '...In such an assessment, no niggardly or unduly narrow approach would be warranted.' That is because indemnity costs are exceptional and are awarded only for good reason..."

• [11] The application to fix costs is supported by an affidavit of Mr Sharry, an experienced solicitor of this court. The amount sought is $76,948.72. That amount represents 80% of the defendant's solicitors' fees and 100% of counsel's fees up to the date of hearing of the application only.
• [12] The defendant's solicitor own client costs exceed $92,000 up to and including the date of the hearing of the application and the defendant does not seek to recover any costs associated with the application after that date, although it is likely in the region of a further $5,000 will have been incurred.
• [13] The amount sought is supported by a sufficiently detailed explanation of the work performed, and I have reviewed the actual invoices for the work performed which are in evidence.
• [14] I am satisfied that:

(a) the work performed and the costs incurred are within the ranges of work and costs incurred in response to an application of the kind in respect of which costs were awarded;

(b) the rates charged by the defendant's solicitors and billed to the defendant were at a substantial discount to that firm's usual rates;

(c) the fixed costs sought are not outlandish;

(d) the amount of fixed costs sought is reasonable and appropriate, no further discounting of the amount sought is required.

• [15] I order that the costs the subject of order 2 of the orders of 27 August 2024 be fixed in the sum of $76,948.72. The defendant did not seek any costs of its application to fix costs and so I make no order as to costs in that regard.

[1] Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 7) [2018] FCA 1217 at [49] (Mineralogy).

[2] Coshott v Burke (No 2) [2018] FCAFC 81 at [21].

[3] Mineralogy at [50] citing Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 123.

[4] Fewin Pty Ltd v Burke (No 3) [2017] FCA 693 at [61].

[5] Australian Securities and Investments Commission v Atlantic 3-Financial (Aust) Pty Ltd (No 3) [2008] QSC 9; [2008] 2 Qd R 298 at [32] (Atlantic 3-Financial) citing Hadid v Lenfest Communications Inc [2000] FCA 628 at [25] and Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738 at [21].