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  4. Smith v Body Corporate for Professional Suites Community Title Scheme 14487 (No. 2) - [2012] QDC 121

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Smith v Body Corporate for Professional Suites Community Title Scheme 14487 (No. 2)[2012] QDC 121

Smith v Body Corporate for Professional Suites Community Title Scheme 14487 (No. 2)[2012] QDC 121

DISTRICT COURT OF QUEENSLAND

CITATION:

Smith v Body Corporate for Professional Suites Community Title Scheme 14487 (No. 2) [2012] QDC 121

PARTIES:

JODY SMITH
(Plaintiff)

AND

BODY CORPORATE FOR PROFESSIONAL SUITES COMMUNITY TITLE SCHEME 14487
(Defendant)

FILE NO/S:

3873/04

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

31 May 2012

DELIVERED AT:

Brisbane 

HEARING DATE:

Written Submissions to 17 May 2012

JUDGE:

Robin DCJ

ORDER:

Plaintiff to pay defendant’s costs of the proceeding on the standard basis.

CATCHWORDS:

Uniform Civil Procedure Rules r 361, r 659

Personal Injuries Proceeding Act 2002

Costs - plaintiff’s claim fails entirely - whether defendant should have indemnity costs because she proceeded in defiance of “clearly established law” and imprudently rejected offers of compromise - whether defendant entitled to any costs before service of its offer under the Rules.

COUNSEL:

Mr K. Wilson SC and Dr G. J. Cross for the plaintiff

Mr R. C. Morton for the defendant

SOLICITORS:

Colin Patino & Company for the plaintiff

Moray & Agnew for the defendant

  1. [1]
    The plaintiff’s claim having been dismissed, the question of the appropriate costs order remained for decision. Reconvening the court proved not feasible, owing to counsel unavailability, and detailed submissions were provided in writing:
  1. (1)
    from the defendant, seeking its costs on an indemnity basis (8.5.12);
  1. (2)
    from the plaintiff, submitting that costs against her should be on the standard basis and, on the grounds put forward, that the order should apply only from 27 September 2011, a date seven years into the proceeding and 10 years after the plaintiff’s injury (14.5.12); and
  1. (3)
    from the defendant, responding to those grounds and maintaining its original stance (17.5.12).
  1. [2]
    After careful consideration of the submissions, I have concluded that the appropriate order is that costs ought to follow the event, that the defendant ought to get against the plaintiff its costs of the proceeding generally, to be assessed on the standard basis, on the assumption that the decision explained in reasons dated 30 March 2012 ([2012] QDC 49) survives the plaintiff’s appeal.
  1. [3]
    The claim for indemnity costs was based on:
  1. (a)
    the plaintiff allegedly proceeding in “wilful disregard” of “clearly established law”; and
  1. (b)
    her “imprudent refusal of an offer of compromise.”  See Di Carlo v Dubois [2002] QCA 225 at [37].
  1. [4]
    Reference was made to Naomi Marble & Granite Pty Ltd v FAI General Insurance Company Ltd (No. 2) [1999] 1 Qd R 518; [1998] QSC 018 for recognition of the availability of indemnity costs in circumstances like the present of complete failure of the claim and the plaintiff’s rejection of offers.  In that case there were features not reflected here, such as presentation of dishonest evidence.
  1. [5]
    As to (a), there is arguably no binding authority directly in point, although by the date of the relevant incident, a clear trend of appellate decisions against the plaintiff had overtaken the smattering of first instance decisions against occupiers who failed to ensure that their glass wall panels or doors were replaced if necessary to meet toughening standards for new building work as the years passed. The plaintiff and her advisers ought to have known that she was very much swimming against the tide. Success would depend upon the court making some very fine distinctions. However, I do not think it was so mischievous or unreasonable to pursue a claim unlikely to proceed at trial, but with a view to prevailing on appeal as to make indemnity costs appropriate.
  1. [6]
    The defendant’s (a) and (b) have to be considered in combination as well as on their own. It should also be borne in mind that special circumstances are required to justify indemnity, as opposed to standard, costs. The defendant’s first offer of $15,000 included no component of costs (see s 40(1)) and was made on 3 September 2004 as part of the mandatory pre‑litigation steps under the Personal Injury Proceedings Act 2002 (PIPA) (which applied notwithstanding that the incident occurred on 21 December 2001).
  1. [7]
    Presumably based on increasing confidence regarding its legal position, the defendant’s next offer of compromise on 26 September 2011, made under the UCPR, essentially was that if the claim were discontinued, the parties would bear their own costs – an offer said, from its standpoint, to involve foregoing a significant costs entitlement.
  1. [8]
    The third offer was a Calderbank v Calderbank [1976] Fam 93 letter of 2 December 2011 along the same lines.  None of the offers was accepted.  In 2004 the plaintiff had asked for $75,000.
  1. [9]
    The PIPA offer (s 39) is said by the plaintiff to be irrelevant, for two reasons:
  1. (a)
    PIPA does not provide that costs are payable when a claim is dismissed – which the legislation could readily have stated;
  1. (b)
    if a residual costs discretion remains in relation to PIPA offers, it should not be exercised in favour of a defendant which fails to comply with PIPA disclosure requirements.
  1. [10]
    In my opinion, nothing should be implied in PIPA (which deals with costs in many sections, including ss 20F, 20J, 22, 27, 35, 38, 48, 56 and 83) to remove the court’s traditional discretions regarding costs. That proper “disclosure” under s 27 of PIPA is important may be accepted:  Newsome v Aust Scan Pty Ltd [2010] QSC 223 at [17].  The plaintiff’s complaints of “drip feed” disclosure to her could just as appropriately have been made of her own disclosure.  Repeated amendments of her statement of claim have rendered some additional disclosure appropriate over the years.  I accept that deficiencies in disclosure which prejudice a party by causing the party to adopt or adhere to a position which otherwise would not be taken would be a relevant factor in deciding costs.  Here, it has not been shown that any circumstance along these lines arose – for example, that given fuller, earlier disclosure, the plaintiff would have accepted an offer.
  1. [11]
    The second offer was made under r 361.  The parties disagree as to whether the rule applies, given the complete failure of the claim.  The defendant says that the plaintiff did not obtain a judgment “not more favourable to [her] than the offer” within r (1)(a), that she obtained no judgment at all.  It cites Naomi Marble in that connection.  The plaintiff relies on r 659 as establishing that a judgment dismissing a claim is as much one “obtained” by the plaintiff setting out the plaintiff’s “entitlement” as a judgment sounding in money.
  1. [12]
    It is not necessary to resolve the issue. The value the plaintiff sees in r 361 is the stipulation that, prima facie, in the scenario as depicted by her, by r (2)(b) her costs obligation can and should be limited to “the defendant’s costs, calculated on the standard basis after the day of service of the offer to settle.”  Such an outcome is plainly unacceptable, given that it would deprive the defendant of costs it should have for things done over years prior to that date.  The rule in circumstances like the present ones should not be used to deprive a defendant of costs it would ordinarily be entitled to because late in the picture it served an offer that subsequent events established the plaintiff ought to have accepted.  Rule (2), of course, contemplates that it may be shown that “another order for costs is appropriate in the circumstances”.  The general order for costs in the defendant’s favour is appropriate here.
  1. [13]
    The point of the Calderbank offer was apparently to place the plaintiff on notice that indemnity costs would be sought in a form that could be placed before the court.  No doubt this would strengthen the claim to indemnity costs, but it does not persuade me to grant them here.  I might mention that I am concerned that the stances taken by the defendant appear to have led to the trial’s being listed for and occupying more time than proved necessary in the event.  This factor gives rise to some misgivings about the appropriateness of inflicting an indemnity costs order on the plaintiff.
Close

Editorial Notes

  • Published Case Name:

    Smith v Body Corporate for Professional Suites Community Title Scheme 14487 (No. 2)

  • Shortened Case Name:

    Smith v Body Corporate for Professional Suites Community Title Scheme 14487 (No. 2)

  • MNC:

    [2012] QDC 121

  • Court:

    QDC

  • Judge(s):

    Robin DCJ

  • Date:

    31 May 2012

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Calderbank v Calderbank (1976) Fam 93
1 citation
Jump To
Cite 1 - (1976) Fam 93
Di Carlo v Dubois [2002] QCA 225
1 citation
Jump To
Cite 1 - [2002] QCA 225
Naomi Marble & Granite Pty Ltd v FAI General Insurance Company Ltd [1998] QSC 18
1 citation
Jump To
Cite 1 - [1998] QSC 18
Naomi Marble and Granite Pty Ltd v FAI General Insurance Co Ltd (No 2) [1999] 1 Qd R 518
1 citation
Jump To
Cite 1 - [1999] 1 Qd R 518
Newson v Aust Scan Pty Ltd [2010] QSC 223
1 citation
Jump To
Cite 1 - [2010] QSC 223
Smith v Body Corporate for Professional Suites Community Title Scheme 14487 [2012] QDC 49
1 citation
Jump To
Cite 1 - [2012] QDC 49

Cases Citing

Case NameFull CitationFrequency
Stevens v Hopgood Ganim Lawyers [2024] QCAT 5841 citation
1

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