Jackson Nominees Pty Ltd v Pioneer Building Products (Qld) Pty Ltd
[2005] QDC 230
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- Unreported Judgment
- Jackson Nominees Pty Ltd v Pioneer Building Products (Qld) Pty Ltd[2005] QDC 230
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Jackson Nominees Pty Ltd v Pioneer Building Products (Qld) Pty Ltd[2005] QDC 230
Jackson Nominees Pty Ltd v Pioneer Building Products (Qld) Pty Ltd[2005] QDC 230
DISTRICT COURT OF QUEENSLAND
CITATION: | Jackson Nominees Pty Ltd v Pioneer Building Products (Qld) Pty Ltd [2005] QDC 230 |
PARTIES: | JACKSON NOMINEES PTY LTD (Plaintiff) V PIONEER BUILDING PRODUCTS (QLD) PTY LTD (t/a PIONEER HERVEY BAY PLASTAMASTA CENTRE) (Defendant) |
FILE NO/S: | D96 of 2000 |
DIVISION: | Civil |
PROCEEDING: | Application for variation of costs order. |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 22 July 2005 |
DELIVERED AT: | Beenleigh |
HEARING DATE: | 30 June 2005 |
JUDGE: | Tutt DCJ |
ORDER: |
|
CATCHWORDS: | Leave sought to reopen question of costs of the proceeding – where offer to settle was made by plaintiff – where judgment awarded after trial no less favourable to the plaintiff than offer – whether costs of proceeding should be awarded in favour of plaintiff and assessed on an indemnity basis. Uniform Civil Procedure Rules 1999 rr. 354, 356, 360, 667 and 704. Connolly v Skrapulj, Supreme Court of Victoria, 434 of 1990, 2 March 1993. Fail v Hutton & Suncorp Metway Insurance Ltd [2003] QSC 291. |
COUNSEL: | Ms C Heyworth-Smith for the plaintiff. Mr S Keim SC for the defendant. |
SOLICITORS: | Lewis & McNamara Solicitors for the plaintiff. Stephen Comino & Cominos Solicitors for the defendant. |
- [1]Subsequent to judgment being delivered in this proceeding on 30 June 2005 the plaintiff sought leave (which was granted, without objection by the defendant) to re-open the question of costs in respect of the order made at the time judgment was delivered.
- [2]The order made at that time was that the plaintiff received an order for costs of the proceeding including reserved costs to be assessed on the standard basis under the District Court scale.
- [3]The Uniform Civil Procedure Rules 1999 (“UCPR”) provide the court with a wide discretion to vary or set aside an order it has made[1] but in this matter there is no dispute between the parties as to the court’s capacity to do so.
- [4]The undisputed evidence is that the plaintiff delivered an “Offer to Settle” in the proceeding on 12 December 2003 that “The defendant shall pay the plaintiff the sum of $105,000.00 including interest in full and final settlement of the plaintiff’s claim including interest (and) the defendant shall pay to the plaintiff costs on a standard basis”.
- [5]The offer was made pursuant to Chapter 9 Part 5 of the UCPR and was open for acceptance within fourteen (14) days of service of the offer on the defendant. The offer was made approximately eight (8) months before the commencement of the trial.
- [6]Rule 360 of the UCPR relevantly provides:
“Costs if offer to settle by plaintiff
- (1)If—
- (a)the plaintiff makes an offer to settle that is not accepted by the defendant and the plaintiff obtains a judgment no less favourable than the offer to settle; and
- (b)the court is satisfied that the plaintiff was at all material times willing and able to carry out what was proposed in the offer;
the court must order the defendant to pay the plaintiff’s costs calculated on the indemnity basis unless the defendant shows another order for costs is appropriate in the circumstances.
- (2)If the plaintiff makes more than 1 offer satisfying subrule (1), the first of those offers is taken to be the only offer for this rule.”
- [7]The quantum of the judgment delivered in this matter was “…no less favourable than the offer to settle” delivered by the plaintiff.
- [8]Plaintiff’s counsel therefore seeks an order for costs in terms of Rule 360 of the UCPR in lieu of the original costs order made by the court.
- [9]Defendant’s counsel primarily argues that the plaintiff should be denied such an order because of the timing of its offer, being almost four (4) years after the commencement of the proceeding and eight (8) months before trial but it would seem that the timing of the offer alone for reasons mentioned below is not particularly relevant to a consideration of the issue.
- [10]Secondly, defendant’s counsel argues that because the issue in the proceeding was a difficult construction argument in respect of the agreement, which could have been decided either way, it was entitled in effect, not to concern itself with the provisions of Chapter 9 Part 5 of the UCPR and merely abide the court’s ultimate decision.
- [11]Plaintiff’s counsel has referred the court to the matter of Fail v Hutton & Suncorp Metway Insurance Ltd [2003] QSC 291, where Moynihan SJA ordered that the defendant pay the plaintiff’s costs of the action on an indemnity basis even though the plaintiff’s first offer to settle was made “on the first working day after trial”.
- [12]This decision would seem to highlight the “…pressure on a party to consider an offer made in accordance with the Rules”[2] whenever an offer to settle is made irrespective of when the offer is made in the course of the proceeding so long as it is made “at any time before final relief is granted”.[3]
- [13]While this indulgence to a party at such a late stage in the proceeding might seem to be over-generous the combination of Rules 354(1)(b) and 360 of UCPR clearly allow for it and the offeree has a steep hurdle to overcome to avoid an order for indemnity costs for the whole proceeding being made in favour of the offeror if the offer satisfies Rule 360(1)(a).
- [14]The second limb of defendant’s counsel’s submissions would seem to beg the question raised by Chapter 9 Part 5 of UCPR and implied by Connolly v Skrapulj (supra) which is to induce the parties to an action to pursue a compromise of the proceeding however confident one party might be of a successful outcome rather than run the risk of being on the receiving end of the consequences of an offer to settle provided for by Rule 360(1).
- [15]In all the circumstances I am not persuaded that the defendant has shown that “…another order for costs is appropriate in the circumstances” and consequently the court’s order of 30 June 2005 in respect of costs is varied so that the plaintiff is now entitled to its costs of the proceeding on an indemnity basis.
- [16]The final orders of the court in this matter will be as follows:
- Judgment for the plaintiff, Jackson Nominees Pty Ltd, against the defendant, Pioneer Building Products (Qld) Pty Ltd, in the sum of $131,171.00 together with costs including reserved costs to be assessed on an indemnity basis as provided by Rule 704(1) of the UCPR; and
- The defendant’s counterclaim is dismissed.