MNM Developments Pty Ltd v. Gerrard [2005] QDC 340 (4 November 2005)

Last Updated: 10 November 2005

DISTRICT COURT OF QUEENSLAND

CITATION:	MNM Developments Pty Ltd v Gerrard [2005] QDC 340
PARTIES:	MNM DEVELOPMENTS PTY LTD (ACN 103 948 509) Applicant and WILLIAM ALAN GERRARAD Respondent
FILE NO:	404/2004
PROCEEDING:	Costs application
ORIGINATING COURT:	District Court, Southport
DELIVERED ON:	4 November 2005
DELIVERED AT:	Southport
HEARING DATES:	Written submissions dated 12 and 13 September 2005
JUDGE:	Newton DCJ
ORDER:	Costs of and incidental to the application are to be the parties’ costs in the proceedings
COUNSEL:	Mr P Hackett – applicant Mr L Jurth – respondent
SOLICITORS:	Schultz Toomey O’Brien– applicant Short Punch & Greatorix – respondent

[1]	The applicant (plaintiff) sought summary judgment of its claim by application filed on 22 December 2004. The application was dismissed and written submissions in relation to costs were duly provided pursuant to paragraph 19 of the judgment delivered on 4 February 2005.

[2]

Costs of a proceeding, including an application in a proceeding, are in the discretion of the Court but follow the event, unless the Court considers another order more appropriate (UCPR R 689(1)). The defendant was wholly successful in resisting the application and in normal circumstances it may be expected that an order for costs in favour of the defendant would be made.

[3]

However, the matter is complicated by the fact that the Court of Appeal rejected the basis upon which the decision in favour of the defendant had been made although the appeal was dismissed because in the Court’s view, the relevant factual situation had not been established clearly by the evidence, or addressed. Accordingly, the Court held that summary judgment could not have been, and could not, on appeal, be entered. (MNM Developments Pty Ltd v Gerrard [2005] QCA 230 at [9] and [22] per de Jersey CJ).

[4]

I accept that in these circumstances the resolution of the factual dispute between the parties at trial or otherwise, ought to determine the respective entitlement to costs. Accordingly, I order that the costs of and incidental to the application filed on 22 December 2004 should be the parties’ costs in the cause.

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