The Supreme Court of Queensland’s decision in Wilson v R&Q Capital No 6 Ltd [2026] QSC 123 considers the costs consequences of an unsuccessful limitation extension application, a related third-party application, and the circumstances in which enforcement of a costs order may be stayed.
The plaintiffs had commenced dependency claims arising from a fatal workplace accident three days after the expiry of the relevant limitation period. They applied under s 59(2)(b) of the Personal Injuries Proceedings Act 2002 (Qld) for an extension of time.
The first defendant opposed the application on the basis that it would suffer prejudice if the extension were granted because it would be unable, by reason of s 40 of the Limitation of Actions Act 1974 (Qld), to pursue the proposed third party. It also brought a separate application seeking leave to pursue that third-party claim.
The plaintiffs’ extension application was dismissed. As a result, it was unnecessary to determine the third-party application, which was also dismissed.
Costs of the extension application
Under r 681 of the Uniform Civil Procedure Rules 1999 (Qld), costs are in the Court’s discretion but ordinarily follow the event.
Cooper J accepted that the plaintiffs had acted reasonably in bringing the extension application, that the issues were finely balanced, and that the delay was attributable to the conduct of their former lawyers rather than the plaintiffs themselves.
However, those matters were insufficient to displace the usual rule. The first defendant had successfully resisted the application and was therefore entitled to its costs.
His Honour noted that the plaintiffs could seek to recover those costs in their professional negligence claim against their former lawyers as loss incurred in attempting to mitigate the consequences of the late commencement of the proceeding.
Costs of the third-party application
The first defendant also sought to have the plaintiffs bear the costs associated with the third-party application, including the proposed third party’s costs.
The Court considered principles analogous to Sanderson and Bullock costs orders.
The critical question was whether anything in the plaintiffs’ conduct made it fair to impose those third-party costs on them.
Cooper J held that it did not. The first defendant had brought and pursued the third-party application to protect its own interests and preserve its ability to pursue the proposed third party if the plaintiffs’ claims were allowed to proceed.
Accordingly, the first defendant was required to bear both its own costs of the third-party application and the costs of the proposed third party.
Stay of the costs order
The plaintiffs also sought a stay of enforcement of the costs order pending the outcome of their professional negligence claim against their former lawyers.
Cooper J accepted that special or exceptional circumstances existed.
In combination, those circumstances included the fact that the extension application had been brought in an attempt to mitigate loss allegedly caused by the former lawyers, the possibility that the adverse costs could be recovered in the professional negligence proceeding, and the plaintiffs’ financial circumstances.
Enforcement of the costs order was therefore stayed pending resolution of that claim.
Hemmant’s List counsel
The decision featured five counsel, all of whom are members of Hemmant’s List:
For the plaintiffs: David Schneidewin, with Bianca Stringer
For the first defendant: Brett Charrington KC, with Katrina Kluss
For the proposed third party: Kevin Holyoak