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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
TTR1 Pty Ltd v Ruckert & Butcher [No 2]  QDC 199
TTR1 PTY LTD
ACN 608 105 700
ANTHONY ALAN RUCKERT
ROHAN CHARLES BUTCHER
3997 of 2018
District Court of Queensland
25 September 2019, ex tempore
25 September 2019
Porter QC DCJ
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – where the plaintiff was successful at trial – where the plaintiff made a settlement offer under the Uniform Civil Procedure Rules 1999 (Qld) – where the defendants both rejected the plaintiff’s settlement offer – where the defendants were given notice of the plaintiff’s intention to seek indemnity costs in the event of their success at trial – where the defendants are self – represented – where the second defendant sought additional time to put on written submissions regarding costs – whether the matter should be adjourned to allow the defendants additional time for the preparation of written submissions regarding costs – whether indemnity costs should be ordered against the first and second defendants
Uniform Civil Procedure Rules 1999 (Qld), r 360, r 363
M K Callanan for the plaintiff
The second and third defendant each appeared on their own behalf
Moore Lawyers for the plaintiff
The second and third defendant each appeared on their own behalf
- Today I handed down judgment in this matter and sought submissions on interest and costs. The plaintiff was successful at trial. The plaintiff put before me an offer purportedly made under chapter 9, part 5 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), to settle the proceedings for $220,000 on the terms there identified. Relevantly, the form of the offer was this:
Plaintiff’s Offer to Settle
The Plaintiff hereby offers to settle this proceeding on the following basis:
- The First Defendant and Second Defendant pay the sum of $220,000 (the “Settlement Sum”), to the Plaintiff in full and final satisfaction of the Plaintiff’s claim in this proceeding against the Defendants;
- The Settlement Sum be paid within 14 days of acceptance of this offer.
- Paragraphs 3 and 4 are not relevant, paragraph 5 provided:
- This offer:
- must be accepted in writing;
- shall remain open for acceptance for a period of 14 days after the day of service of this offer and will thereafter immediately lapse; and
- is made pursuant to Chapter 9, Part 5 of the Uniform Civil Procedure Rules 1999 (Qld) and alternatively, on the principles in cases such as Calderbank v Calderbank (1975) 3 All ER 333.
- The offer, on its face, does not specify to which of the defendants it is addressed. However, by paragraph 1 the plaintiff offers to settle upon the first and second defendant paying a sum in full and final satisfaction of their proceeding against both the defendants. The offer to settle was in exactly the same terms, but served separately on each of the first and second defendants’ solicitors at the time.
- It is true that, if one of the defendants had accepted the offer and the other had not, the acceptance may have been ineffective in the sense that one of the defendants could not settle on the basis of a promise that the other defendant pay a certain sum. However, the form of the offer is, in my respectful view, consistent with that which is expressly required under the UCPR, and, in particular, rule 363(2)(a). Rule 363 relevantly provides that:
- If there are 2 or more defendants, the plaintiff may make an offer to settle with any defendant, and any defendant may offer to settle with the plaintiff.
- However, if defendants are alleged to be jointly or jointly and separately liable to the plaintiff and rights of contribution or indemnity may exist between the defendants, this rule applies to an offer only if–
- for an offer made by the plaintiff – the offer is made to all of the defendants and is an offer to settle a claim against all the defendants; […]
- In my respectful view, it is plain on the face of the offer, that it is an offer to all the defendants because the offer cannot be anything but an offer to all the defendants, and paragraph 1 makes plain that it is an offer to settle the proceeding against all of the defendants. The fact that the offer was separately served does not mean it was not made to all the defendants. The offer had to be served separately because the defendants had different solicitors.
- A difficulty arises as to the consequence where rule 363 is complied with, and one defendant accepts and another does not. The authorities do not identify precisely how to deal with this circumstance. However, it seems to me that that difficulty is irrelevant in this case because the offer was made to both defendants and neither accepted. It must be contemplated by the rules that, where there is compliance with the express requirements of rule 363 and no acceptance occurs from either defendant, at the least the consequences under rule 360 should flow.
- Accordingly, I find the offer to be an offer made properly under the rules in the circumstances of this case, bearing in mind, of course, that the defendants are sued as guarantors in respect of whom they are jointly liable and have rights of contribution. The offer was not accepted meaning that the prima facie position under the rules, that costs are to be calculated on an indemnity basis, applies.
- The next question which arises is whether the defendants can show that an order for costs other than costs calculated on an indemnity basis, as specified in rule 360, should apply. The defendants were given the opportunity, without objection from Mr Callanan for the plaintiff, to put forward from the bar table such matters as they could formulate that would justify, or might justify, another order for costs being appropriate in the circumstances. Neither were able to put forward persuasive propositions.
- The second defendant, Mr Butcher, submitted that one reason that might justify that course is his view that the method of recovery by the plaintiff was inappropriate, in that they did not realise the security before pursuing the guarantors. That point has no merit: the guarantee was not conditional on realising the security first, and a mortgagee can make decisions about accessing their security as they wish, as is explained in my judgment. Apart from this, I do not accept that there is any commercial practice of lenders realising security before calling on guarantors. My experience in practice does not sustain the conclusion that there is any such practice. In any event, there is no merit in Mr Butcher’s proposition.
- Mr Butcher also submitted that the offer had not had a long enough period for performance. The period for performance, on one view of it, was up to 28 days. The offer was open for the minimum period expressly provided for in the rules of 14 days, and called for payment 14 days after acceptance of the offer. If Mr Butcher had decided he intended to accept the offer, the provisions could have allowed him 28 days for performance. In any event, I am not persuaded that the time allowed for payment was so short as to displace the prima facie position under the rules.
- The first defendant, Mr Ruckert, did not seek more time to make submissions on the question of costs. His main concern seemed to be the amount of costs that would be payable under the order. I explained to him, and to Mr Butcher, that the order I would make would identify the basis upon which costs would be calculated, not the amount which would be paid. I also explained that there is a process under the rules whereby an amount sought can be required to be put in the form of a costs statement to be considered by an assessor and, ultimately, reviewed in a court. Mr Ruckert, having been given some time to think about it, did not seek to make further submissions or to have the matter adjourned for him to consider making further submissions.
- Mr Butcher sought time to put on written submissions. That request was opposed by Mr Callanan for the plaintiff. Mr Callanan relied not only on the fact that the offers had been made, but, more particularly, that notice was given five days ago, referring the first and second defendant again to the specific offers and notifying them of the plaintiff’s intention to seek indemnity costs.
- Mr Butcher said that, though he received the affidavit, he did not understand its implications, nor what costs would be payable. He did tell me, from the bar table, that he had consulted his ex-solicitor, but nonetheless, he appeared today, unprepared in any way to deal with the matter. When I asked him what purpose would be served by giving additional time for him to put on submissions, he referred to his unpreparedness and not fully understanding what was to pass, and not fully understanding the judgment. That second proposition carries little weight because the content of the judgment is largely irrelevant to the way an offer under the rules is dealt with, unless something in the judgment unusually impacts on that question. I can think of nothing of that character. Otherwise, the content of the judgment is, itself, irrelevant, at least in this case.
- Mr Butcher’s apparent primary concern was to be prepared to deal with the question of how much the costs would be. That is not a reason why I should make another order. It is also not a reason why I should adjourn to allow written submissions to be put before the Court, for the reason I have already given: by awarding costs on an indemnity basis, consistent with rule 360, I am not ordering any specific amount be paid.
- This was not a complex costs question. Notice was given five days ago. It seems to me that the entitlement to indemnity costs under rule 360 has arisen. The argument that it has not arisen is very weak indeed, and has little prospect of success. It is barely speculative. The real concern of Mr Butcher in seeking the adjournment seems to lie in his concern about the amount of costs and, as I have said, that is not a relevant consideration at this stage.
- In those circumstances, I intend to make costs orders, giving effect to the offer made to the defendants. I also note that the amount of interest payable has been calculated based on the Supreme Court website calculator. The order of magnitude seems about right and is not materially different from the calculation provided to me at the end of submissions a couple of weeks ago. In those circumstances, I intend to make orders to finally dispose of the proceedings in the following terms:
- The first and/or second defendant pay to the plaintiff the amount of $377,958.08 being $360,000 for the claim plus $17,958.08 for interest from 26 October 2018 to 25 September 2019.
- The first defendant’s counterclaim is dismissed.
- The first and second defendant pay the plaintiff’s costs of this proceeding on the indemnity basis (which, in the case of the second defendant is to exclude the plaintiff’s costs of the first defendant’s counterclaim).
- The second defendant pay the plaintiff’s costs of the second defendant’s application filed 25 July 2019.
 TTR1 Pty Ltd v Ruckert & Butcher  QDC 182 at -.
- Published Case Name:
TTR1 Pty Ltd v Anthony Alan Ruckert and Rohan Charles Butcher (No 2)
- Shortened Case Name:
TTR1 Pty Ltd v Ruckert (No 2)
 QDC 199
25 Sep 2019