Tri-Star Petroleum Company v Australia Pacific LNG Pty Ltd

[2] Paragraph 5 of APLNG's submissions on costs dated 6 March 2026 fairly outlined the broad areas in which the parties respectively enjoyed success on the application. At a high level, each side enjoyed some success. By their costs submissions, the parties respectively submitted that they had enjoyed "substantial" success on the application. The matters in respect of which Tri-Star enjoyed success concerned matters which "were of fundamental importance to the counterclaim".[1] The complaints which were vindicated concerned matters that might have been expected to be important for informing proper disclosure, the identification of witnesses and to prevent surprise.[2] I accept Tri-Star's submission that as a result of its success in relation to those matters, it has revealed "serious problems with the [pleading]"[3] and the effect of the striking-out is that APLNG did not properly plead reliance and detriment which were essential to its proposed defence and counterclaim. Viewed as such, and having regard to the importance and significance of the paragraphs struck out, I find that Tri-Star enjoyed substantial success on the application.

[3] Nevertheless, APLNG enjoyed success on a large number of issues. Having regard to the manner in which the application was conducted, I find that the issues in respect of which APLNG enjoyed success occupied a significant amount of the written and oral submissions. It is also noteworthy that a significant number of Tri-Star's submissions in respect of the issues which it lost, did not conform with the strike out jurisprudence and tended to be more in the nature of arguments that might be advanced at a trial.

[4] I have been referred to the general principles governing the exercise of the costs discretion. I am conscious of r 681(1) of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR") and also the summary of principles contained in Courtney v Chalfen [2021] QCA 25 at [4]- [5]. Those principles have been applied in the context of a strike out application.[4] I was also referred to Alkia Holdings Pty Ltd v Carter Group Pty Ltd (In Liq) (No 2).[5]

[5] The exercise of the costs discretion falls to be exercised having regard to the facts of the actual case in which the discretionary judgment is made. In Alkia Holdings, Bond J outlined some circumstances which a Court might consider in determining whether some order other than the usual order as to costs is more appropriate. One such circumstance is where a Court forms an overall impression, having regard to the significance of the issues, the way they were determined and the amount of time and costs spent on them that an order for one party to pay a proportion of another party's costs is a way to reflect fairly the party's comparative success or failure in the outcome which was obtained. In the present case, I consider that kind of approach is an appropriate approach to apply. I have formed the overall impression, having regard to the significance of the issues, the way they were determined and the amount of time and costs spent on them, that the proper exercise of the costs discretion involves ordering APLNG to pay 60 per cent of Tri-Star's costs of and incidental to the application on the standard basis.

[6] I also consider it necessary to make an order that APLNG pay Tri-Star's costs thrown away by reason of any amendments made pursuant to leave granted on 16 February 2026, to be assessed on the standard basis if not agreed, such costs, unless otherwise agreed by the parties, to be neither assessed nor recovered until the proceeding ends. The order made in Australia Pacific LNG Pty Ltd v Santos Toga Pty Ltd (No 2) [2025] QSC 80 at [10] was made by agreement but the reasons make reference to r 386. On my reading of r 386, its application is limited to amendments made under r 378. In this case any amendments will be made pursuant to the order which granted leave.

1. The defendants shall pay 60 per cent of the plaintiffs' costs of and incidental to the application filed 28 March 2025 to be agreed or, failing agreement, to be assessed on the standard basis
2. The defendants shall pay the plaintiffs' costs thrown away by reason of any amendments made pursuant to the leave granted on 16 February 2026, to be assessed on the standard basis if not agreed, and such costs, unless otherwise agreed by the parties, are to be neither assessed nor recovered until the proceeding ends.

[3] Pullenvale Estates Pty Ltd as Trustee for Mantle Family Trust v Malone (No 2) [2015] QSC 35 at [2].

[4] Australia Pacific LNG Pty Ltd v Santos Toga Pty Ltd (No 2) [2025] QSC 80 at [3]- [4].

[5] [2017] QSC 266 at [4].