Pullenvale Estates Pty Ltd as Trustee for Mantle Family Trust & Ors v Malone & Anor

[1] On 13 February 2015, I struck out much of the statement of claim. The result was not precisely according to the defendants' application however. Some of their arguments were not accepted. Some of the paragraphs of the statement of claim which they challenged were not struck out. And there were other paragraphs which I did strike out, because that was a proper consequence of my acceptance of some of the defendants' argument. Nevertheless, on any sensible view, the defendants achieved substantial success. They seek their costs.

[2] The plaintiffs submit that the costs of the application should be costs in the proceeding or alternatively that they should have to pay only half of the defendants' costs. They point to the differences between the application and the outcome to which I have already referred. They say that "the defendants enjoyed success in respect of roughly half of their arguments". But a numerical account of the successful and unsuccessful submissions will rarely give a proper indication of an appropriate costs order. The defendants' application revealed serious problems with the plaintiffs' pleading. Absent the paragraphs which I struck out, what would remain of the plaintiffs' case would be markedly different from that which had been pleaded.

[3] The plaintiffs also made a further submission which would seem to suggest that the costs should be reserved to the trial judge. They submitted that "at that time the issues which are significant will be clear, the resolution of the proceedings will be known, and the concerns which have been expressed by the defendant's expert can be the subject of further consideration". However the outcome of this interlocutory application was not the result of any assessment of the ultimate merits. It was the result of my assessment of the shortcomings of the pleading. There is no reason to reserve these costs.

[4] The plaintiffs will be ordered to pay the defendants their costs of the application determined by my judgment on 13 February 2015, including the costs of the defendants' written submissions dated 20 February 2015.