Thorne Developments Pty Ltd v Laird [2025] QSC 235

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE; COSTS FOLLOW EVENT - where the parties entered into a Share Sale Agreement - where, by the agreement, shares were sold by the plaintiff to the first and second defendant - where the third and fourth defendants guaranteed the first and second defendants' performance under the Share Sale Agreement - where a Loan Agreement was entered into between the plaintiff and first and second defendants - where the plaintiff advanced monies to the first and second defendants to pay the purchase price under the Share Sale Agreement - where the purchase price was paid - where the loan was not repaid - where the plaintiff sued the first and second defendants for the loan monies - where the plaintiff pursued the third and fourth defendants under the Guarantee - where the proceedings were commenced in the Supreme Court of New South Wales - where the proceedings were transferred to the Supreme Court of Queensland - where it was discovered that the plaintiff was deregistered at relevant times - where the plaintiff applied to validate the agreements and other acts taken while it was deregistered - where, during the proceedings, there were various costs reserved - where the plaintiff was successful against the first, second and third defendants - where the plaintiff was unsuccessful against the fourth defendant - where it was held the fourth defendant had not guaranteed the performance of the second defendant under the Loan Agreement - where the plaintiff was, during parts of the proceedings, represented by its director - where the plaintiff's director was a retired barrister without a practising certificate - whether costs should follow the event - where a Guarantee by a director of the plaintiff was given pursuant to a security for costs order - whether the Guarantee ought be discharged.

Uniform Civil Procedure Rules 1999 (Qld), r 386, r 629, r 681

Thorne Developments Pty Ltd v Laird [2021] QSC 90, related

Thorne Developments Pty Ltd v Laird [2022] QSC 85, related

Thorne Developments Pty Ltd v Laird [2022] QSC 139, related

Thorne Developments Pty Ltd v Laird & Ors [2022] QSC 217, related

Unreported decision, Supreme Court of Queensland, Davis J, 11 November 2022, related

P Land, director of the plaintiff, made written submissions on behalf of the plaintiff

M De Waard made written submissions on behalf of the defendants

• [1] This is the determination of the issue of costs of proceedings determined by orders made on 13 October 2022[1] and a subsequent oral application determined by orders delivered ex tempore on 11 November 2022.[2]

• [2] The dispute concerned the repayment of monies owed under a Loan Agreement where the debt arose upon completion of a related Share Sale Agreement.
• [3] Thorne Developments Pty Ltd, the plaintiff, owned half of the issued shares in Transparent Industries Pty Ltd, the operator of an adult entertainment club and the holding company of various subsidiaries in what I have previously described as "the Showbar Group".[3]
• [4] The other half of the issued shares in Transparent Industries were owned beneficially by Mr Graham David Laird, the third defendant. Mr Laird was also a trustee of the Laird Family Trust and is the first defendant in that capacity.
• [5] Rick Williamson Investments Pty Ltd, the second defendant, is a company controlled by Mr Richard John Williamson, the fourth defendant.
• [6] In December 2011, an arrangement was agreed whereby Thorne Developments would sell its shares in Transparent Industries to Mr Laird as trustee and Rick Williamson Investments.
• [7] In February 2012, a Share Sale Agreement was executed. The terms included a purchase price of $1,871,775, and covenants by Mr Laird and Mr Williamson personally guaranteeing the purchase obligations of Mr Laird as trustee and Rick Williamson Investments under the Share Sale Agreement.
• [8] By the terms of the Share Sale Agreement, the sum of $395,000 was immediately due and payable in exchange for the perfected transfer of the shares and fulfillment by Thorne Developments of various other obligations. The remaining part of the purchase price was paid via money advanced pursuant to the Loan Agreement executed between the parties on the same day as the Share Sale Agreement.
• [9] Under the terms of the Loan Agreement, Thorne Developments advanced the sum of $1,476,775 to Mr Laird as trustee and Rick Williamson Investments. That advance then paid the remaining part of the purchase price due under the Share Sale Agreement and was to be repaid by 31 August 2012. It was not.
• [10] It would later emerge that Thorne Developments had been de-registered at the time at which the Share Sale Agreement and Loan Agreement were entered into. It was later reinstated in September 2013. The effect of this was that the entering into of the agreements and the related actions taken, such as the transfer of shares under the Share Sale Agreement, were invalid, unless validated by a court pursuant to of the (Cth).

• [20] This matter has been the subject of several orders relevant to the subject of costs.
• [21] The Supreme Court of New South Wales, when transferring the matter to this Court, ordered Thorne Developments to pay the costs of the defendants' notice of motion to transfer the proceedings. The defendants later sought assessment of those costs in this Court, and Thorne Developments were ordered to pay those costs by order of the Registrar on 9 June 2015.
• [22] The Supreme Court of New South Wales also ordered the defendants to pay Thorne Developments' costs of an adjournment on 28 February 2014. Those costs were ordered to be assessed in this Court on 29 May 2015.
• [23] On 10 October 2014, Flanagan J, as his Honour then was, dismissed an application for joinder brought by Thorne Developments. His Honour awarded the defendants their costs of and incidental to the application to be assessed on the standard basis. Those costs were assessed and ordered to be paid by order of the Deputy Registrar dated 18 May 2015.
• [24] On 14 August 2015, Byrne SJA made an order in the following terms:

"the Plaintiff provide security, within 14 days, for the Defendants' costs pursuant to rule 670 of the UCPR by the Plaintiff's director, Patrick Norman Casey providing the Defendants with a written guarantee and indemnity whereby he agrees to be personally liable for any costs order made against the Plaintiff in these proceedings, except the costs orders dated 18 May 2015 and 9 June 2015"

There was no order as to costs in that application.

• [25] The guarantee and indemnity was provided.
• [26] On 27 November 2015, Applegarth J granted leave for Thorne Developments to file an amended claim. His Honour ordered that the costs of that application "be each party's costs in the cause."
• [27] On 18 June 2020, I heard an application by Thorne Developments for leave to amend its pleadings. I delivered judgment on 11 May 2021, granting leave for some of the amendments sought and ordered Thorne Developments pay the defendants' costs of that application, with the costs being payable upon final judgment in the proceeding.[9]
• [28] I case managed the proceedings from that point and heard several mentions and applications. Costs were reserved by orders made in events heard on the following dates:

(a) mentions, including those on on 27 May 2021, 21 July 2021, 21 March 2022, 31 March 2022, 8 April 2022, and 20 July 2022;

(b) applications decided on 20 September 2021, 18 October 2021, 13 October 2022, 28 October 2022, 11 November 2022, and 23 January 2023.

• [29] On 20 September 2021, I heard an oral application by the defendants to strike out a paragraph of Thorne Developments reply and answer filed on 8 September 2021. The defendants were successful, and I ordered that the question of the costs of the defendants' oral application to strike out the paragraph be reserved. The particulars of the applications of 18 October 2021, and 28 October 2022, the latter of which was decided on 11 November 2022, are explained in paragraphs [66] and [67].
• [30] As earlier observed, Bradley J, as his Honour then was, made orders validating the guarantees and made no order as to costs with respect to the determination of that separate question.[10]
• [31] In the New South Wales proceedings, Thorne Developments were represented by Gillis Delaney Lawyers and had briefed counsel. In June 2014, after the proceedings were transferred to this Court, Thorne Developments filed a notice that it was acting in person. Later that year, it filed a document that explained that it had engaged Mr Land by way of direct access brief from 9 October 2014.
• [32] Patrick Norman Casey, secretary and director of Thorne Developments, has sworn an affidavit exhibiting a table detailing what he says are the costs incurred by legal representatives when Thorne Developments was represented by independent lawyers.
• [33] The table exhibited to Mr Casey's affidavit lists Mr Land as having been briefed as counsel for the period between from 1 August 2014 to 30 June 2017 and then again from 1 July 2019 to 20 June 2020. It also lists senior counsel as having been briefed from the period of May 2016 to August 2017. Mr Casey deposes that both Mr Land and senior counsel were briefed on a speculative "no win no fee" basis.
• [34] It is apparent that, at some point following 20 June 2020, Mr Land became a director of Thorne Developments, and began representing it in that capacity from 30 June 2020.
• [35] Mr Casey deposes that Thorne have been self-represented since 30 June 2020.
• [36] Thorne Developments have filed five amended statements of claim and two amended claims. The first amended pleadings were filed in December 2015, and the most recent amended pleadings were filed, pursuant to my orders, on 27 July 2021. That raises consideration of rr 386 and 692 of the .

Thorne Developments and the first, second, and third defendants

• [37] Thorne Developments claims costs as against the first three defendants. It says it should be awarded outlays and expenses incurred by the company and its director, Mr Land, in pursuing the claim. It submits that the power for the Court to make an order for costs reimbursing the outlays of a third party, in this case a director of the company, stems from s 15 of the Civil Procedure Act 2011.
• [38] Thorne Developments seeks the costs of legal representation and disbursements incurred since the filing of the proceeding in New South Wales.
• [39] As earlier observed, Thorne Developments was represented by solicitors for the entirety of the New South Wales proceedings and has sporadically engaged counsel by way of direct brief during the proceedings in this Court. It does not claim any legal costs incurred since Mr Land began acting as a representative in his role as company director.
• [40] In summary, the position of Thorne Developments is that costs ought follow the event, and should be awarded for its costs, disbursements, and the expenses of its directors.
• [41] The first, second, and third defendants resist Thorne Developments' claim. While they accept that costs should generally follow the event,[11], they submit there be no Order as to the costs of the proceedings".
• [42] In support of their position, the first, second, and third defendants raise several arguments. First, they argue that the barrister's fees claimed by Thorne Developments are "extraordinary", not properly particularised, and relate to pleadings that were later amended.
• [43] Secondly, they point to the unrepresented status of Thorne Developments and rely on the proposition that a self-represented party cannot, generally, recover costs. They argue that principle extends to the travel and accommodation costs claimed for Thorne Developments' directors, and printing, postage and search fees incurred by the directors.

• [44] Thirdly, those defendants also point to the multiple pleading amendments filed by Thorne Developments and claim they would be entitled to "substantial" costs which they say have been thrown away by Thorne Developments' amendments. The defendants rely on rr 386 and 692(2) of the Uniform Civil Procedure Rules 1999, which state:

(1) The costs thrown away as a result of an amendment made under rule 378 are to be paid by the party making the amendment unless the court orders otherwise.

(2) However, unless the court orders otherwise or the parties otherwise agree, the costs mentioned in subrule (1) are not to be assessed, and are not recoverable, until the proceeding ends.

(1) This rule does not apply to a party who amends a document because of another party's amendment or default.

(2) A party who amends a document must pay the costs thrown away by the amendment, unless the court orders otherwise.

(3) However, unless the court orders otherwise or the parties otherwise agree, the costs mentioned in subrule (2) are not to be assessed, and are not recoverable, until the proceeding ends." (emphasis added)

• [45] In its reply, Thorne Developments resists the position of the first three defendants. In response to those defendants' first point, it says it was not required to provide particulars of the work produced by its counsel and legal representatives. It also says that it should be able to recover the legal costs and disbursements of the New South Wales proceedings and the portions of the proceedings in this Court in which it was legally represented.
• [46] As to the costs allegedly thrown away by pleading amendments, Thorne Developments argues that the defendants' position is not particularised as to why the costs allegedly thrown away ought to be awarded to the defendants. In any event, it says, an entitlement to costs thrown away would not arise from most of the amendments filed. It also asserts that its own amendments required insignificant amendments to the defences filed in response, and would not be significant enough to warrant the exercise of discretion to make no order as to costs for the whole of the proceedings.

Thorne Developments and the Fourth Defendant, Mr Williamson

• [47] Mr Williamson, having been entirely successful in his defence of the claim, submits that costs should follow the event and should be paid on the standard basis.
• [48] Thorne Developments resists that position. It says that it should not have to pay Mr Williamson's costs of the proceedings. In support, it points to my observations in the reasons given when giving judgment against the first, second, and third defendants, where I stated:

"The question of costs and 'expenses' is problematic. Thorne Developments was represented by lawyers up to a point. There is a discretion in the Court to award it those costs. However, it has failed in its proceedings against Mr Williamson. Mr Williamson may seek costs. Mr Williamson though may struggle to achieve a substantial costs order in his favour. He ultimately successfully defended the proceedings upon the construction of two documents, the Share Sale Agreement and the Loan Agreement. He could have raised that argument and had it determined years ago. Instead, he sat back while Thorne Developments expended costs pursuing him and he also incurred costs himself"[12]

• [49] Thorne Developments says such circumstances give rise to an exercise of discretion to disengage the general rule that costs should follow the event.
• [50] As to the specific costs of the hearing on 28 August 2022, for which I delivered judgment on 13 October 2022,[13] Thorne Developments says in its submissions those costs are "settled". There is no evidence of any settlement of those costs.

Discharge of the indemnity order of Byrne SJA dated 14 August 2015

• [51] Brief submissions were provided with respect to the order requiring Thorne Developments' director, Mr Casey, to provide an indemnity for costs incurred by the company.
• [52] Mr Williamson submits that he would not oppose the order against Mr Casey being discharged in the event that no order as to costs is made against Thorne Developments. If there is a costs order made against Thorne Developments, he says, there is no occasion to discharge the indemnity.
• [53] Thorne Developments submits that the parties agreed to discharge the indemnity in September 2022 as between themselves, and that the Court should make an order discharging the personal guarantee and indemnity to the agreement formal effect.
• [54] The evidence that the parties discharged the guarantee is some correspondence to which I will later refer.

• [55] As explained, the proceedings have a long history and there have been various costs orders. Nothing in these reasons, or in the consequent orders, are intended to affect any award of costs in favour of any party that has already been made.
• [56] What remains for determination are:

(a) the costs of the proceedings in the Supreme Court of New South Wales;

(b) costs of amendments to the pleadings;

(c) costs of various mentions;

(d) costs of the applications reserved on 20 September 2021, 18 October 2021, 13 October 2022, 28 October 2022, 11 November 2022, and 23 January 2023;

(e) costs of Mr Williamson;

(f) recovery by Thorne Developments of expenses; and

(g) the fate of the costs guarantee.

Costs of the proceedings in the Supreme Court of New South Wales

• [57] As observed earlier, the proceedings were commenced in the Supreme Court of New South Wales and transferred to this Court. While the matter was being litigated in New South Wales, Thorne Developments was legally represented. As also observed earlier, various costs orders were made by the Supreme Court of New South Wales.
• [58] Ultimately the plaintiff was successful against each of the first, second and third defendants, albeit that success came later in this Court.
• [59] In my view, the plaintiff should have its costs of the proceedings in New South Wales, except in respect of which there have already been costs orders against it.
• [60] There is no reason to depart from the general rule of costs following the event.

• [61] The rules provide[14] that a party who amends a document, including a pleading, must pay the costs thrown away by the amendment. While the plaintiff ultimately won its case, that does not excuse inappropriately framing it from time to time. There is, in my view, no reason to depart from the standard rule embodied in rr 386 and 692 of the Uniform Civil Procedure Rules 1999, that each party should pay costs thrown away by an amendment they have made unless, of course, that amendment was responding to an amendment of the other party.
• [62] By rr 386 and 692, Thorne Developments will pay costs thrown away by the amendments unless the Court otherwise orders. Therefore, no order will be made.

• [63] As earlier observed, the case was managed. There is nothing to suggest that any stance taken by the plaintiff on any mention was unreasonable. There is no suggestion that the plaintiff conducted itself so as to incur costs unnecessarily.
• [64] The first, second and third defendants ought to be ordered to pay the costs reserved on each of the mentions.

Costs of the applications of 20 September 2021, 18 October 2021, 13 October 2022, 28 October 2022, 11 November 2022 and 23 January 2023

• [65] The costs of the 20 September 2021 concerned an application by the defendants to strike out a paragraph of the plaintiff's reply and answer, filed on 8 September 2021. Although the defendants were successful, it was a minor victory in lengthy proceedings where the plaintiff was ultimately successful. There should be no order as to costs of that application.
• [66] On 18 October 2021, the validation issue was ordered to be determined separately. That was a case management decision and there is no reason why costs of that application ought not follow the event. The costs of Thorne Developments in obtaining judgment (the orders of 13 October 2022) should be its costs.
• [67] The costs reserved on 28 October 2022 and 11 November 2022 concern Mr Williamson. This is considered in relation to the question of the costs of Mr Williamson generally.
• [68] The costs reserved by order of 23 January 2023 concern an application for an order that the first defendant pay Thorne Developments a sum of money equivalent to the apparent sale price of land owned by the Laird Family Trust and sold to Mr Laird's relatives. No special fund was identified. No freezing order was applied for. The order sought was simply payment of $320,000 in the face of an existing judgment for over $4,000,000. The application was misconceived and the first defendant should have his costs of it.

• [69] Mr Williamson successfully defended the plaintiff's claim. He did so on the basis expressed in the judgment of 13 October 2022. Mr Williamson guaranteed to Thorne Developments performance of the first defendant's obligation under the Share Sale Agreement. On a proper construction of the guarantee, he did not guarantee the payment of the money the subject of the Loan Agreement. The Loan Agreement evidenced a round robin of obligations whereby money that was not physically advanced was attributed towards payment under the Share Sale Agreement and a debt was then created under the Loan Agreement. That satisfied the only debt Mr Williamson guaranteed.
• [70] Mr Williamson could have raised that argument at any time during the proceedings. Instead, he aligned himself with the interests of the other defendants and did not raise the winning argument until after the judgment of Bradley J had been delivered.
• [71] It is doubtful that there would be any substantial costs incurred independently by Mr Williamson as he was represented by the same lawyers as represented the other defendants.
• [72] After receiving the reasons published on 13 October 2022, Thorne Developments should have conceded that Mr Williamson was entitled to judgment. However, in all the circumstances, there should be no order as to costs in relation to the claim against Mr Williamson.
• [73] As observed earlier, there is an assertion that Mr Williamson's costs were settled. There is no evidence to support that assertion. Thorne Developments can still raise a settlement in resistance of any recovery of costs which have been awarded in Mr Williamson's favour.[15]

• [74] Mr Land did not hold a practising certificate and appeared by leave. However, various expenses have been claimed.
• [75] Whether those expenses are recoverable is ultimately an issue for assessment and no order is required at this point.

• [76] As already observed, the guarantee was given pursuant to order made by Byrne SJA on 14 August 2015. A caveat over property owned by Mr Casey was lodged as security in support of the guarantee.
• [77] An appeal was filed against the orders of Bradley J made on 16 June 2022 which validated the arguments.
• [78] As also already observed, there was a mention before me on 20 July 2022. On that occasion I made directions for the hearing of applications for any orders consequent upon the validation of the agreements by Bradley J. On that day I set down any applications for hearing before me on 25 August 2022.
• [79] On 31 August 2022, solicitors for all defendants wrote to Mr Casey:

"Attached for your records is a copy of the fully signed Notice of Agreement to Dismissal of Appeal.[16]

The original has been sent by post for filing in the Court of Appeal Registry.

I will also shortly send a copy via email to the Court of Appeal Registry.

Given that one of the matters our clients conceeded was return of the personal guarantee I am happy to return your personal guarantee without waiting for the further orders of Davis J.

Please let me know if you would like me to return it by post or alternatively if you would prefer to collect it from our office.

Alternatively, I am happy to securely destroy the original guarantee we hold and provide confirmation that has been done."[17]

• [80] The letter of 31 August 2022 records the agreement to discontinue the appeal and the "return of the personal guarantee" which was a matter that the defendants had "conceded". That was to occur "without waiting for the further orders of Davis J" which must be a reference to any orders to be made consequent upon the hearing on 25 August 2022.
• [81] Mr Casey replied to the email on 31 August 2022:

"Thank you for your e-mail and the endorsed Notice.

On the matter of the Personal Guarantee, I am happy for your to destroy the original of the guarantee and advise me when that has been done."[18]

• [82] On 1 September 2022, the defendants' solicitors wrote again to Mr Casey enclosing a withdrawal of the caveat and confirming that the Deed of Guarantee had been destroyed.
• [83] In the absence of any other explanation (and none is offered), the only natural inference to draw is that the guarantee has been discharged by the parties. No order is necessary.
• [84] The following orders are made:

1. Except to the extent of costs already determined by earlier order, or payable by force of the Uniform Civil Procedure Rules 1999, the first, second and third defendants shall pay the plaintiff's costs of the proceedings, including:

(a) costs reserved in the Supreme Court of New South Wales; and > > (b) all costs reserved in this Court, except the costs reserved by order of 20 September 2021 and the costs reserved by order of 23 January 2023.

1. The plaintiff shall pay the first defendant's costs reserved by order of 23 January 2023. 2. There shall be no order as to costs for:

(a) those costs reserved by order of 20 September 2021; or > > (b) the proceedings against the fourth defendant.

[1] Thorne Developments Pty Ltd v Laird & Ors [2022] QSC 217.

[2] Unreported decision, Supreme Court of Queensland, Davis J, 11 November 2022.

[3] Thorne Developments Pty Ltd v Laird [2022] QSC 217 at [2].

[4] Thorne Developments Pty Ltd v Laird [2022] QSC 85.

[5] Thorne Developments Pty Ltd v Laird [2022] QSC 139.

[6] CA8238-22, Notice of Agreement to Dismissal of Appeal filed 1 September 2022.

[7] Thorne Developments Pty Ltd v Laird [2022] QSC 217 at [69]- [71].

[8] Supreme Court of Queensland, unreported, 11 November 2022.

[9] Thorne Developments Pty Ltd v Laird [2021] QSC 90.

[10] Thorne Developments Pty Ltd v Laird [2022] QSC 85; and Thorne Developments Pty Ltd v Laird [2022] QSC 139.

[11] Uniform Civil Procedure Rules 1999, r 681.

[12] Thorne Developments Pty Ltd v Laird [2022] QSC 217 at [85].

[13] Thorne Developments Pty Ltd v Laird [2022] QSC 217.

[14] Uniform Civil Procedure Rules 1999, rr 386 and 692.

[15] For instance, those relating to amendments.

[16] A reference to the appeal from the decision of Bradley J.

[17] This extract has been faithfully reproduced, notwithstanding the appearance of obvious errors.

[18] This extract has been faithfully reproduced, notwithstanding the appearance of obvious errors.