Murdoch v Alex Mackay & Co (No 2)
[2017] QDC 89
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- Unreported Judgment
- Murdoch v Alex Mackay & Co (No 2)[2017] QDC 89
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Murdoch v Alex Mackay & Co (No 2)[2017] QDC 89
Murdoch v Alex Mackay & Co (No 2)[2017] QDC 89
DISTRICT COURT OF QUEENSLAND
CITATION: | Murdoch v Alex Mackay & Co (No 2) [2017] QDC 89 |
PARTIES: | PETER MURDOCH First Appellant AND NOELA MURDOCH Second Appellant v JOSEPH ALEXANDER MACKAY AND PETER PREVITERA trading as ALEX MACKAY & CO (a firm) First Respondent AND ABERCLARE PTY LTD Second Respondent |
FILE NO/S: | 3831/16 |
DIVISION: | Civil |
PROCEEDING: | Application for Leave to Appeal |
DELIVERED ON: | 21 April 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Bowskill QC DCJ |
ORDER: | The appellants pay the first respondents’ costs of the application for leave to appeal (but not any costs of the first respondents incurred in this proceeding in relation to applications made or steps taken by the second respondent, Aberclare Pty Ltd) on the standard basis up to 19 October 2016 and on the indemnity basis from 20 October 2016 onwards. |
CATCHWORDS: | APPEAL – LEAVE TO APPEAL – COSTS Uniform Civil Procedure Rules 1999, rr 352, 353, 766(1)(d), 785 Bulsey v Queensland [2016] QCA 158 Calderbank v Calderbank [1975] 3 All ER 333 Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd [2016] QCA 130 Kitchen v Vision Eye Institute Ltd [2017] QCA 32 Kozak v Matthews & Anor [2007] QSC 204 Stewart v Atco Controls Pty Ltd (No 2) (2014) 252 CLR 331 Sultana Investments Pty Ltd v Cellcom Pty Ltd (No 2) [2009] 2 Qd R 287 |
COUNSEL: | T Quinn for the First Respondents |
SOLICITORS: | Robinson Locke Litigation Lawyers for the Appellants Alex Mackay & Co for the First Respondents |
- [1]On 10 April 2017 I delivered my reasons for refusing the appellants’ application for leave to appeal.[1] I indicated that, subject to any submissions made within 7 days, the order as to costs of the proceeding would be that the appellants pay the first respondents’ costs of the application for leave to appeal (but not any costs of the first respondents incurred in this proceeding in relation to applications made or steps taken by the second respondent, Aberclare Pty Ltd).
- [2]The first respondents seek an order that their costs be paid on the indemnity basis.[2] The application is made on the basis that the first respondents made a number of offers to settle this proceeding which were, unreasonably, ignored by the appellants.
- [3]The appellants do not, in the circumstances, oppose an order that they pay the first respondents’ costs, on the standard basis up to 4 October 2016 (the date of the first offer to settle) and on the indemnity basis after that. They do, however, take some objections to the affidavit of Mr Previtera, relied on in support of the order sought by the first respondents.[3]
- [4]The relevant affidavit of Mr Previtera (sworn on 18 April 2017) annexes five offers to settle made by the first respondents, and served on the appellants by correspondence dated 4 October, 1 November and 23 November 2016, 13 February and 10 March 2017.
- [5]Objection is taken to paragraphs 5, 6, 7 and 8 of the affidavit, on the bases that these paragraphs purport to give (secondary) evidence of the contents of documents; contain “objectionable commentary… as to the private thought process of the solicitor when making the offer”; contain argumentative opinion and irrelevant material. The objections are taken, the appellants submit, because of the costs consequences of the drafting of the affidavit.
- [6]I accept that paragraph 8, which purports to set out, and explain, the contents of each of the five offers (which are in fact annexed to the affidavit) is inadmissible and, indeed, unnecessary. The documents speak for themselves. Paragraphs 5, 6 and 7 are more in the nature of submissions than evidence, and are for that reason also unnecessary.
- [7]Turning then to the appropriate costs order. The first two offers (made on 4 October and 1 November 2016) state that they are made in accordance with chapter 9, part 5 of the Uniform Civil Procedure Rules 1999. Those provisions do not apply to appeals.[4] The next three offers are expressed to be made on the basis of the principles in Calderbank v Calderbank.[5]
- [8]This court, on an appeal (or application for leave to appeal), has a broad discretion to make the order as to the costs of the proceeding that it considers appropriate: rr 766(1)(d) and 785 UCPR.[6] This includes consideration of the basis on which any costs so ordered are to be assessed, in respect of which the non-acceptance of a Calderbank offer to settle is a relevant factor.[7]
- [9]In my view, it is appropriate to treat the first offer to settle as a Calderbank offer, notwithstanding the reference to the UCPR provisions.[8]
- [10]It is only that first offer which needs to be considered. It was made on 4 October 2016, and involved a considerable element of compromise on the part of the first respondents (including offering to accept lower amounts than the Magistrates Court judgment sum and interest, as well as making no demand for costs of this proceeding). The offer was open for acceptance for 15 days.
- [11]Having regard to the relevant principles, I am satisfied it is appropriate to make an order that the appellants recover their costs, on the indemnity basis, from the expiration of the “acceptance period” of that first offer, namely 19 October 2016. It was, in all the circumstances, unreasonable for the appellants not to accept this offer.
- [12]Since no submissions were made as to the issue of costs incurred in relation to any steps taken by Aberclare Pty Ltd in this proceeding, the order as to costs will be: that the appellants pay the first respondents’ costs of the application for leave to appeal (but not any costs of the first respondents incurred in this proceeding in relation to applications made or steps taken by the second respondent, Aberclare Pty Ltd) on the standard basis up to 19 October 2016 and on the indemnity basis from 20 October 2016 onwards.
Footnotes
[1] Murdoch v Alex Mackay & Co [2017] QDC 81.
[2] First respondents’ submissions, dated 18 April 2017.
[3] Appellants’ submissions, dated 19 April 2017.
[4] See rr 352 and 353 UCPR; Sultana Investments Pty Ltd v Cellcom Pty Ltd (No 2) [2009] 2 Qd R 287 at [14].
[5] Calderbank v Calderbank [1975] 3 All ER 333 at 342-343.
[6] See also s 47(f) of the Magistrates Court Act 1921.
[7] Stewart v Atco Controls Pty Ltd (No 2) (2014) 252 CLR 331 at [4]; see also Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd [2016] QCA 130; Bulsey v Queensland [2016] QCA 158 at [73]-[76] and Kitchen v Vision Eye Institute Ltd [2017] QCA 32.
[8] Cf Kozak v Matthews & Anor [2007] QSC 204, referred to in Sultana Investments Pty Ltd v Cellcom Pty Ltd (No 2) at [12]. See also Bulsey v Queensland at [77].