SUPREME COURT OF QUEENSLAND

CITATION:	Talbot v Boyd Legal (A Firm) & Ors (No. 2) [2021] QSC 176	
PARTIES:	AMANDA DIANNE TALBOT
(Plaintiff)
v
BOYD LEGAL (A FIRM)
(First Defendant)
and
ARNOLD BLOCH LEIBLER (A FIRM)
(Second Defendant)
and
BRIAN DAVID BARTLEY
(First Third Party)
and
PAUL WILLIAM GLEESON
(Second Third Party)
and
WILLIAM FRANCIS BOYD AS ADMINISTRATOR OF THE ESTATE OF KENNETH TALBOT
(Third Third Party)	
FILE NO:	BS 641 of 2019	
DIVISION:	Trial Division	
PROCEEDING:	Application	
DELIVERED ON:	28 July 2021	
DELIVERED AT:	Brisbane	
HEARING DATE:	On the papers	
JUDGE:	Bowskill J	
ORDERS:	THE COURT ORDERS THAT:
1.  	The plaintiff pay the first defendant’s and the second defendant’s costs of that part of their applications and of the plaintiff’s cross-application which concerned the purported representative proceeding issue, to be assessed on the standard basis if not agreed.
2.  	Otherwise, the costs of the first defendant’s and second defendant’s applications, and the plaintiff’s cross-application, are the parties’ costs in the proceeding.
	
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – costs
	
COUNSEL:	P Dunning QC and P Telford, for the plaintiff
G A Thompson QC S-G and A Nicholas, for the first defendant
S McCarthy, for the second defendant	
SOLICITORS:	Everingham Lawyers, for the plaintiff
Hall & Wilcox, for the first defendant
K&L Gates, for the second defendant	

[1]	On 24 June 2021, I delivered my reasons in relation to the determination of the first defendant’s and second defendant’s amended applications (seeking to strike out parts of the statement of claim and, alternatively, for summary judgment in respect of part of the plaintiff’s claim) and the plaintiff’s cross-application (for leave to amend the claim and statement of claim, and for summary judgment in respect of, or alternatively to strike out, parts of the defences):  Talbot v Boyd Legal (A Firm) & Ors [2021] QSC 157.
[2]	The parties were directed to provide a draft order, giving effect to those reasons, in terms of the substantive outcome of the applications.  That was done, and orders made on 16 July 2021.
[3]	In relation to costs of the various applications, I gave an indication of the order that would be made, in the event no submissions were received, but made directions for any party contending for another order to file submissions.  The order I proposed was that the parties’ costs of the applications be the parties’ costs in the proceeding (save for the costs of the mention on 24 May 2021, which were to be paid by the plaintiff).   This was on the basis of the mixed successes and failures of the parties on the various applications.  
[4]	Both the first and second defendants have filed submissions contending for a different order as to costs (other than in relation to the costs of the mention on 24 May 2021) – namely, that the plaintiff pay their respective costs of the three applications before the court, or, alternatively, the whole of their costs of the plaintiff’s cross-application and 75% of their costs of their applications.  The plaintiff presses for an order in the terms I had provisionally indicated.
[5]	The general rule is that costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise:  r 681(1) UCPR.   Rule 684 UCPR empowers the court to make an order for costs in relation to a question in, or a particular part of, a proceeding.
[6]	In the circumstances of this case, and having considered the written submissions on behalf of each of the plaintiff, first and second defendants, I accept that it may be appropriate to proceed on the basis that each of the substantive issues argued on the applications is an event for the purposes of r 681, rather than viewing each application as an indivisible whole. 
[7]	It is correct to say that the plaintiff’s cross-application was wholly unsuccessful.  But it was largely responsive to issues raised by the defendants’ applications:
(a)	in one respect, seeking relief to regularise the purported representative proceeding claim; and
(b)	in the other, seeking summary judgment in respect of, or alternatively to strike out, parts of the defences which were relied upon in the defendants’ applications to strike out or for summary judgment on parts of the plaintiff’s claim.
[8]	Otherwise, in respect of the issues raised on the applications:
(a)	the defendants were successful in striking out the purported representative claim amendments, with no leave to replead;
(b)	the defendants were not successful in striking out the plaintiff’s claim in so far as it claims losses associated with the Karoon Shares and the Non-Karoon Shares and Assets – but nor was the plaintiff successful in striking out parts of the defences dealing with this (although I expressed the view that, in a few respects, the second defendant’s defence would need to be amended, following amendment to the statement of claim);
(c)	the defendants were not successful in striking out the plaintiff’s claim on the basis that she lacks standing, as no duty could be said to be owed to her (although I expressed a view about the apparent viability of this aspect of the plaintiff’s claim, on the basis of the authorities, and the potential for expansion of the duty and for findings about potentially distinguishing features was also acknowledged); and
(d)	the defendants were successful in striking out five paragraphs of the statement of claim, on the basis of deficiencies in the pleading of causation, with leave to replead granted.
[9]	It was on the basis of this mixed success and failure that at the time of delivering my reasons I considered, pragmatically, that the most appropriate order for costs of these interlocutory applications may be for the costs to be the parties’ costs in the proceeding – on the basis that the successful party(ies), once the whole of the proceeding is resolved, would recover the costs.
[10]	Having considered the written submissions of the parties, I have formed a different view.
[11]	I am persuaded that it is appropriate to order that the plaintiff pay the first defendant’s and the second defendant’s costs of that part of their applications and of the plaintiff’s cross-application which concerned the purported representative proceeding issue.   The plaintiff was wholly unsuccessful in relation to this issue, and it is a matter which put the defendants to expense to address, in circumstances which do not advance the proceeding in any way.   I do not consider I can fairly attribute a percentage in terms of the proportion of the costs associated with this issue to the whole.  For that reason, it will be left to an assessment, unless the parties can agree.
[12]	However, in terms of the balance of the first defendant’s and second defendant’s applications, and the plaintiff’s cross-application, I remain of the view that the appropriate order is that the parties’ costs should be costs in the proceeding. 
[13]	I do not accept the defendants’ submission that the plaintiff should be ordered to pay the whole of the costs of their applications; nor that she should be ordered to pay 75% of those costs.  Neither of those scenarios fairly represents the outcome of the applications.  As to what the correct percentage to be attributed to the various issues might be, I find that difficult to estimate.  From my perspective, the work involved in the issues raised on which the defendants did not succeed was more substantive than those on which they did.  To this extent, the outcome I propose may be seen to favour the defendants.   If I made another order, it would be in terms of the plaintiff paying some part of the defendants’ costs and vice versa, which would then involve more cost and time in assessing the outcome.  
[14]	Further, in so far as there will be amendment of parts of the statement of claim, which puts the defendants to expense in terms of amending their defences, r 386 of the UCPR addresses this by providing that the costs thrown away as a result of an amendment are to be paid by the party making the amendment.
[15]	For those reasons, the order of the court is that:
(a)	the plaintiff pay the first defendant’s and the second defendant’s costs of that part of their applications and of the plaintiff’s cross-application which concerned the purported representative proceeding issue, to be assessed on the standard basis if not agreed; and
(b)	otherwise, the costs of the first defendant’s and second defendant’s applications, and the plaintiff’s cross-application, are the parties’ costs in the proceeding.