Wright v K B Nut Holdings P/L
[2012] QDC 215
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- Unreported Judgment
- Appeal Determined (QCA)
- Wright v K B Nut Holdings P/L[2012] QDC 215
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Wright v K B Nut Holdings P/L[2012] QDC 215
Wright v K B Nut Holdings P/L[2012] QDC 215
DISTRICT COURT OF QUEENSLAND
CITATION: | Wright v K B Nut Holdings P/L (as Trustee for the Kerrie-Ann Stevenson Family Trust) t/as “Bonapartes Serviced Apartments” (No 2) [2012] QDC 215 |
PARTIES: | ROBYN JOY WRIGHT (plaintiff) v K B NUT HOLDINGS PTY LTD (AS TRUSTEE FOR THE KERRIE-ANN STEVENSON FAMILY TRUST) (ACN 127 054 872), TRADING AS “BONAPARTES SERVICED APARTMENTS” (defendant) |
FILE NO/S: | D3367/2011 |
DIVISION: | Civil |
PROCEEDING: | Claim |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 9 August 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Dorney QC, DCJ |
ORDER: | 1. The plaintiff pay the defendant’s costs of and incidental to the proceeding, to be assessed on the standard basis up to and including 15 March 2012, and on an indemnity basis thereafter. |
CATCHWORDS: | Costs – r 361 UCPR inapplicable – 3 offers – last offer substantial – whether any indemnity costs to be awarded Uniform Civil Procedure Rules 1999 (Qld) rr 361, 698 Astway Pty Ltd v Council of the City of the Gold Coast [2007] QSC 224 Blundstone v Johnson & Anor [2010] QCA 258 Di Carlo v Dubois & Ors [2002] QCA 225 Foster v Galea (No 2) [2008] VSC 331 Kozak v Matthews (as Executrix of the Will of Messer, deceased) [2007] QSC 204 Lawes v Nominal Defendant [2007] QSC 103 The Portland Downs Pastoral Company Pty Ltd v Great Northern Developments & Ors (No 2) [2011] QSC 161 |
COUNSEL: | J P Kimmins for the Plaintiff R W Morgan for the Defendant |
SOLICITORS: | Shine Lawyers for the Plaintiff HBM Lawyers for the Defendant |
Introduction
- [1]On 23 July 2012 I gave judgment for the defendant against the plaintiff. When doing so, I gave the parties leave to file, and serve, written submissions on costs. This has now been done.
Background
- [2]It has been asserted by the defendant - and not put in contention by the plaintiff - that 3 separate offers were made pursuant to the provisions of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”). Sequentially, they are:
- on 6 June 2011, the defendant offered to pay the plaintiff $100,000.00 plus “standard costs and outlays on the District Court sale”;
- on 7 February 2012, the defendant offered to pay the plaintiff $200,000.00 “inclusive of any statutory refunds including Workcover Queensland, Centrelink, Commonwealth Rehabilitation Service, Health Insurance Commission and any other Government Departments instrumentality”, together with the plaintiff’s “standard costs of and incidental to the action to be taxed on the District Court Scale”; and
- on 15 March 2012, the defendant offered to pay the plaintiff $300,000.00 in exactly the same terms as the offer made on 7 February 2012.
Effects of UCPR
- [3]As held in Astway Pty Ltd v Council of the City of the Gold Coast [2007] QSC 224, since the plaintiff has not obtained any “judgment”, r 361 of the UCPR is not engaged: at [15]. Thus, the offers, although made “in accordance with” Part 5 of Chapter 9 of the UCPR, do not have the effect of offers made under that rule in these circumstances.
- [4]Nevertheless, as Astway Pty Ltd also held, it is still open to a Court to make “another order” under r 681 of the UCPR: at [15], although referring to the rule before its renumbering (being previously r 689).
- [5]Rule 681(1) of the UCPR states, relevantly, that the costs of a proceeding are in the discretion of the Court “but follow the event, unless the Court orders otherwise”.
Considerations generally
- [6]As adverted to in The Portland Downs Pastoral Company Pty Ltd v Great Northern Developments & Ors (No 2) [2011] QSC 161, even though r 361 of the UCPR does not apply, the circumstance that an offer was made and not accepted “influences the exercise of a discretion”: at [3], per de Jersey CJ, having regard to Foster v Galea (No 2) [2008] VSC 331, at [9].
- [7]In Kozak v Matthews (as Executrix of the Will of Messer, deceased) [2007] QSC 204, a formal offer made under the UCPR was treated as a Calderbank offer: at [4].The way in which Calderbank offers should be approached was addressed by Byrne J in Lawes v Nominal Defendant [2007] QSC 103. Based upon many decisions there referred to, he identified relevant factors as including: that the mere fact that the party making the offer obtains a judgment more favourable than the terms offered does not of itself inevitably demonstrate such “special” circumstances as would justify a departure from the ordinary basis of a costs assessment; and that a pertinent consideration is whether it appears that the party sought to be made liable for costs on an indemnity basis has “imprudently or unreasonably failed to accept” such an offer of compromise: at folios 5-6. As he further indicated, such an approach will often involve an attempt to form a view about the relevant strengths and weaknesses of the case that ought to have been apparent to the parties when the offer was made: at folio 6. Although those observations were made concerning a Calderbank offer by a plaintiff that was bettered by the plaintiff at trial, it is clear from a number of Queensland Court of Appeal decisions involving a consideration of Calderbank offers that the factors outlined in Lawes are equally applicable in the converse position: see, for instance, Blundstone v Johnson & Anor [2010] QCA 258 and Di Carlo v Dubois & Ors [2002] QCA 225. In that latter case there was, in particular, a reference to the factor of a rejection, by an “imprudent refusal”, of an offer of compromise without specific reference to the party offering: at [37]. There is no requirement for ethical or moral delinquency, although “party and party” costs remain the norm: at [38].
Plaintiff’s submissions
- [8]The plaintiff, in a very brief submission, has submitted that, since a notice of intention to seek leave to withdraw an admission concerning a then pleaded implied term of the Contract was only provided a short time prior to trial, the plaintiff’s position on liability “was a lot stronger prior to” that withdrawal, with the consequential submission of the plaintiff being that there should be “no order as to costs”.
Defendant’s submissions
- [9]The defendant’s primary submission was that it should have its costs on the standard basis up to the date of its first offer (of 6 June 2011) and on an indemnity basis thereafter.
- [10]The defendant contended that the evidence available to the parties at the time of that offer in 2011 on the issue of liability had been available to all parties pursuant to the pre-proceeding disclosure process under the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”). In addition, the defendant contended that the only witnesses it called on liability were original respondents to the PIPA process.
- [11]Robin QC DCJ reserved the question of costs after the defendant applied for, and was granted, an adjournment on 14 March 2012 so that Professor Whiteford could re-examine the plaintiff, following Dr Byth’s “re-diagnosis”.
Consideration
- [12]The admission of the implied term for which leave to withdraw was given was not an implied term which arose either directly from a consideration of any occupier/contractual entrant relationship or from a consideration of s 74(1) of the Trade Practices Act 1974 (Qld). Even if it had, at the end of the day the content of any implied term must be a matter which ultimately is for determination by the Court hearing the trial of the proceeding. After all, such is a matter of law.
- [13]More importantly for the present consideration is what the plaintiff should have done when faced with the various offers made under the UCPR, even though the consideration falls for determination under the general provisions rather than the specific, mandatory provisions of which r 361 is an example. That brings into account both that specific factor mentioned above and that an award of costs on an indemnity basis is not to be seen “as too readily available”: see Di Carlo at [40].
- [14]In my consideration of liability in this proceeding, the pivotal evidence that I relied upon was that provided by the plaintiff herself, although, necessarily, the other evidence lead at trial had a general bearing on that outcome.
- [15]It is also important to note that I assessed damages – although not awarded – at $494,795.38. At the time the third “Calderbank” offer was made, the plaintiff was given the opportunity of accepting $300,000.00 damages plus costs on the standard basis. While prior to that time she might have considered that the offers made did not correctly acknowledge her prospects of success, I find that by 15 March 2012 – the day after the adjournment referred to earlier – the plaintiff was “imprudent” or “unreasonable” (given what the plaintiff actually “knew” of the needle’s location) in then failing to accept that offer that was open from 15 March 2012 for a period of 14 days from the date of service. I find that this constituted a requisite special circumstance. Although given in the context of an application, I also accept McGill SC DCJ’s incorporation of r 5 (of the UCPR) into this consideration, particularly in its reference to “expeditious resolution”.
- [16]Accordingly, guided by the authorities that I have canvassed, I conclude that the appropriate order on costs that should be made is that the plaintiff pay the defendant’s costs of and incidental to the proceeding, to be assessed on the standard basis up to and including 15 March 2012, and on an indemnity basis thereafter. Since r 698 of the UCPR states that, if the Court reserves costs of an application in a proceeding, the costs reserved follow the event (unless the Court orders otherwise), it is unnecessary to specifically refer to the matter of reserved costs made on 14 March 2012.