DISTRICT COURT OF QUEENSLAND

1. [1]
   On 14 June 2012 I gave judgment ordering that the defendant pay the plaintiffs the sum of $144,999.42. That sum was comprised of the following amounts:

$28,245.00 as damages for breach of contract

$67,884.75 as restitution or reparation for use and occupation of real property

$48,869.67 as interest

$144,999.42

2. [2]
   The parties were then given leave to file further written submissions on costs, with the plaintiff’s submissions to be filed and served within seven days and the defendants, within fourteen days.

3. [3]
   On 19 June 2012 the plaintiff’s written submissions were received by the court. Included with and referred to in those submissions was a draft and unsworn affidavit of the plaintiff’s solicitor, Mary Jeffries, which exhibited two formal offers to settle the proceeding in which the above mentioned judgment was given. Both offers were expressly issued under chapter 5 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”).  That course was adopted because of concern as to the effect of UCPR 357(1), in the absence of the leave of the court to make such an affidavit.  Such leave was sought in the event that the defendant disputed the making of those offers. 

4. [4]
   No submissions have been received from the defendant and on 3 July 2012, his solicitors on the court record informed the court that they had not received any further instructions from their client, to make any submissions as to costs.

5. [5]
   Consequently, the plaintiff was given leave for Ms Jeffries to swear her affidavit, which was done on 6 July 2012 and the sworn affidavit was filed on 9 July 2012.

6. [6]
   The unaccepted offers, proved by that affidavit to have been regularly posted to the defendant’s solicitors and therefore and in the absence of contrary proof, taken to have been served at the time of delivery in the ordinary course of such posting^[1] were respectively:

1. (a)
   Posted on or about 19 May 2010 and offering settlement on the basis that the defendant pay the plaintiffs an amount of $76,000 comprising:

a.Claim component$71,000

b.Costs component$  5,000

TOTAL$76,000

2. (b)
   Posted on or about 23 July 2010 and offering settlement on the basis that the defendant pay the plaintiffs the sum of $36,000 plus costs to be assessed.

7. [7]
   Each such formal offer contained incidental requirements in relation to formalising any settlement by deed, payment within seven days of acceptance of the offer (at the latest) and the filing of a notice of discontinuance in respect of the proceeding before the court. Further, each was expressed:

“This offer is open for acceptance for a period of fourteen (14) days”.

8. [8]
   Each offer would therefore satisfy the requirements of UCPR 360(1)^[2], because in substance the offers required action by the defendant and there is nothing to suggest that the plaintiffs were not, at all material times, willing and able to carry out what was proposed. 

9. [9]
   However, and having regard to UCPR 360(2), it is only permissible and necessary to consider the earlier offer, which may be regarded as a genuine attempt to settle the litigation and made at a time when the plaintiffs’ claims had been clearly articulated^[3]. 

10. [10]
    There being nothing showing that another order for costs is appropriate to these circumstances, the court must order the defendant to pay the plaintiffs’ costs calculated on the indemnity basis. In so concluding, I am conscious of the observation in the earlier judgement; Roberts v Juniper [2011] QDC 140 at [39], as to the major proportion of the successful claim being in respect of an application of principle for which there was no identified directly comparable example. However, the onus pursuant to UCPR 360(1) is on the defendant to show that another order is appropriate. 

11. [11]
    Accordingly, the order of the court is that:

1. (a)
   The defendant pay the plaintiffs’ costs of and incidental to the proceeding (including any reserved costs) assessed on the indemnity basis.