Gunderlong Mackay Pty Ltd & Ors v Simpkin & Ors (No 2) [2025] QSC 48: When a Legal Win Causes a Commercial Loss

 In Gunderlong Mackay Pty Ltd & Ors v Simpkin & Ors (No 2), the Supreme Court of Queensland handed down a decision that underscores the importance of forensic precision in litigation.

While the plaintiffs achieved some success (including a money judgment of $15,352.03 and the recovery of certain items) the broader claim was largely unsuccessful. The outcome serves as a cautionary tale: even a technical win can result in a substantial commercial defeat if the litigation strategy is not carefully managed from the outset.

Overview of the Case

The plaintiffs advanced wide-ranging claims including detinue, conversion, bailment, and the imposition of a constructive trust over a property valued at approximately $2 million. The claim initially involved 184 items, later narrowed to 117 in dispute.

Ultimately, the plaintiffs were successful in recovering only 15.5 items and a small monetary amount, representing around 10% to 12% of their overall claim.

The court found that although the plaintiffs had some success, particularly in relation to high-value plant items such as a bulldozer and excavator, the vast majority of their claims failed. The defendants were largely successful in defending the case.

Costs and Consequences

Crow J considered whether to apportion costs between the parties or make a single net costs order. Applying the Uniform Civil Procedure Rules 1999 (Qld), and drawing on authority including Speets Investments, Kosho, and Interchase, the court ultimately ordered that the plaintiffs pay 75% of the defendants’ standard costs.

The key takeaway is clear – the plaintiffs succeeded in legal terms on some points but lost heavily in commercial terms. This result was driven by the disproportion between what was claimed and what was achieved.

The court observed that the plaintiffs pursued an inflated and unfocused claim, and this impacted their costs liability significantly.

Practical Lessons for Commercial Litigation

 Litigation must always be grounded in a realistic, commercial approach. The Gunderlong decision is a reminder that legal strategy should be informed by outcomes that are not only legally sound but also financially justifiable. Below are five practical steps to avoid turning a minor win into a costly exercise.

• Obtain Expert Opinions on Damages Before Filing

A forensic assessment of damages or asset value is critical. Overreaching or relying on unsupported estimates can seriously affect credibility and outcome. Engaging an independent expert early will help define the scope of the case, quantify claims accurately, and prevent inflated expectations.

• Have Counsel Settle Pleadings

Statements of claim should be tight, legally coherent, and focused on viable causes of action. Having counsel settle pleadings ensures that claims are properly formulated and that the pleadings reflect the evidence. It also helps avoid unnecessarily complex or unmeritorious claims that may affect costs later.

• Be Commercial About Recovery

Litigation should be approached with a cost-benefit mindset. Ask whether pursuing certain items or amounts is worth the time, risk, and cost.

In Gunderlong, some of the disputed items were of relatively low value, and the costs of pursuing them far exceeded any practical benefit.

• Use Litigation Specialists

Litigation is a highly technical area. Litigation specialists are well-versed in procedural and substantive nuances, and their expertise can make a significant difference to both legal and commercial outcomes.

In most cases, a litigation specialist will take every opportunity to avoid the need for Court and trials, as the commercial realities are more often than not worse than had the parties settled.

• Regularly Reassess Your Case

Litigation is dynamic. As new evidence becomes available or the case evolves, it’s important to reassess the claim’s viability.

Strategic withdrawal of weak claims, narrowing of issues, or early settlement can prevent adverse cost consequences. Proactive case management is key to protecting your position.

Conclusion

The Gunderlong decision is a reminder that success in litigation is not measured by technical wins alone, but by the overall outcome, after accounting for costs, time, and risk.

Parties must approach litigation strategically, with a clear-eyed view of what is realistically achievable.

If you are considering commencing proceedings or are involved in a commercial dispute, our team can provide a strategic case assessment and help guide you through the process with clarity and precision.

Our litigation specialists are here to ensure that your legal success also makes commercial sense.

The content of this publication is intended to provide a summary and commentary only. It is not intended to be comprehensive nor does it constitute legal advice, and has been prepared based on applicable legislation and case authority at the date of publication. You should seek legal advice on specific circumstances before taking any action.