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Icon Office Solutions Australia Pty Ltd as Trustee of the Brodie Family Trust ACN 083 141 726 v Hughes[2024] QMC 24

Icon Office Solutions Australia Pty Ltd as Trustee of the Brodie Family Trust ACN 083 141 726 v Hughes[2024] QMC 24

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Icon Office Solutions Australia Pty Ltd as Trustee of the Brodie Family Trust ACN 083 141 726 v Hughes [2024] QMC 24

PARTIES:

ICON OFFICE SOLUTIONS AUSTRALIA PTY LTD

AS TRUSTEE OF THE BRODIE FAMILY TRUST ACN 083 141 726

(Plaintiff)

v

RICHARD HUGHES

(Respondent)

FILE NO/S:

M 1824/21

DIVISION:

Magistrates Court

PROCEEDING:

Application for Costs

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

09/12/24

DELIVERED AT:

Brisbane Magistrates Court

HEARING DATE:

On the Papers

MAGISTRATE:

Pinder

ORDER:

I order that the defendant pay the plaintiff:

  1. 1)Interest on the judgment sum in the amount of $12,178.80.
  2. 2)Costs on an indemnity basis fixed in the sum of $22,007.30.

CATCHWORDS:

Interest on Judgement – s 58 Civil Proceedings Act 2011 (Qld) – Delta Pty Ltd v Mechanical & Construction Insurance Pty Ltd [2019] QCA 62 – Magistrates Court Practice Direction 15 of 2013 – Offers to Settle – Costs – Indemnity or Standard – UCPR r 691, r 702, r 703, r 353, r 1003, and r 693 – Calderbank v Calderbank (1976) Fam 93 – Springfield City Group Pty Ltd v Pipe Networks Pty Ltd (No 2) [2022] QSC 299 – Fixing Costs – Peter Carter Transport Pty Ltd and Anor v Swansaway No. 2 Pty Ltd [2021] QDC 109, para 46.

SOLICITORS:

Plaintiff

  1. –
    Counsel - Mr J.Penrose
  2. –
    Solicitors – Hopgood Ganim

Defendant

Appeared pro se

  1. [1]
    I delivered a judgment in this matter on 2 August 2024 (Icon Office Solutions Aus Pty Ltd v Hughes [2024] QMC 13). I gave judgement for the plaintiff against the defendant in the sum of $50,000.
  1. [2]
    In respect of the interests and costs, I directed that in the event that the parties are unable to agree those amounts they were to file and serve written submissions.
  1. [3]
    The plaintiff has now filed –
  1. –
    Outline of submissions – dated 16 August 2024.
  2. –
    Affidavit Timothy Gordon Edwards (of HopgoodGanim Lawyers) affirmed and filed 16 August 2024.
  1. [4]
    The defendant has not filed any further material and has not filed any written submissions.

INTEREST

  1. [5]
    The courts power to award interest up to the date of judgment is provided by section 58 of the Civil Proceedings Act 2011 (CPA).
  1. [6]
    The court may order interest be paid at a rate the court considers appropriate.[1]
  1. [7]
    Unless there is a proper basis for departure the court commonly applies the interest rates set by practice directions.[2]
  1. [8]
    Magistrates Court Practice Direction 15 of 2013 prescribes the rates to be applied pursuant to s 59 (3) CPA.
  1. [9]
    The plaintiff’s submissions at paragraphs 30 and 31 set out correctly the applicable interest rates and the calculation of interest on the judgment sum.
  1. [10]
    I calculate the interest payable by the defendant on the judgment sum from 1 July 2021 to 2 August 2024 in the sum of $12,178.80.
  1. [11]
    I order the defendant pay the plaintiff interest on the judgment sum in the sum of $12,178.80.

COSTS

  1. [12]
    The proceedings were commenced by Claim and Statement of Claim filed on 26 August 2021.
  1. [13]
    The proceedings were defended by the defendant, through to a contested trial, following which the plaintiff succeeded in obtaining judgment in the full amount claimed.
  1. [14]
    The general rule is that costs follow the event[3], and a successful party would obtain an order that the unsuccessful party pay its costs on a standard basis.[4]
  1. [15]
    The plaintiff seeks orders that the defendant pay its costs of the action on an indemnity basis.
  1. [16]
    A court has the power to order costs be assessed on an indemnity basis.[5]
  1. [17]
    The plaintiff has made four offers to settle as follows –
  • 25 January 2023 – an offer that the defendant pay $48,000.00 (inclusive of interest and costs).
  • 8 March 2023 – an offer that the defendant pay $35,000 (inclusive of interest and costs).
  • 8 March 2023 – an offer that the defendant pay $35,000 (inclusive of interests and costs) but expressed on a different basis.
  • 19 May 2023 – an offer that the defendant pay $58,500 (inclusive of interest and costs).
  1. [18]
    The offers to settle of 25 January 2023, 8 March 2023 (the second offer) and 19 May 2023 were all stipulated to be Calderbank offers.[6]
  1. [19]
    The plaintiffs offer to settle of 8 March 2023 (the first offer) was expressed to be an offer to settle in accordance with chapter 9 part 5 of the Uniform Civil Procedure Rules (UCPR).
  1. [20]
    That offer to settle is wrongly described in Mr Edward’s affidavit as an offer to settle “pursuant to rule 733 of the UCPR.”
  1. [21]
    The offer to settle by the plaintiff dated 8 March 2023 is a compliant offer in accordance with chapter 9 part 5 of the UCPR as it is in writing and contains a statement that it is made under that part.[7]
  1. [22]
    Rule 360 UCPR deals with costs if an offer is made by a plaintiff.
  1. [23]
    The current form of rule 360 was amended from the 23 June 2023. It is in different terms to the previous rule. It is rule 360 (prior to amendment), which is applicable to the defendants offer to settle.[8]
  1. [24]
    Rule 360 UCPR in force at the time of this offer and applicable to this matter relevantly provides:

Costs if offer by plaintiff

  1. If –
  1. The plaintiff makes an offer that is not accepted by the defendant and the plaintiff obtains an order no less favourable than the offer; and
  1. 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.

  1. If the plaintiff makes more than 1 officer satisfying subrule (1), the first of those offers is taken to be the only offer for this rule.
  1. [25]
    The plaintiff has obtained an order no less favourable than the offer to settle. Rule 360 therefore entitles the plaintiff – unless the defendant shows another order to costs is appropriate in the circumstances that the court must order the defendant to pay the plaintiffs costs on an indemnity basis.
  1. [26]
    Therefore, rule 360 and the offer to settle dated 8 March 2023 entitled the plaintiff to its costs on an indemnity basis.
  1. [27]
    The correspondence serving the offer to settle of 8 March 2023 (under chapter 9 part 5), also purport to maintain that in the alternative the offer ought be regarded as a Calderbank offer with the defendant on notice that the plaintiff may seek indemnity costs.
  1. [28]
    The plaintiff has not provided any authority for the proposition that an offer to settle can at once be a formal offer to settle under chapter 9 part 5 and a Calderbank offer. The offer to settle 8 March 2024 ought be regarded as an offer to settle under chapter 9 part 5.
  1. [29]
    The plaintiffs first offer in time dated 25 January 2023 is expressed to be a Calderbank offer.
  1. [30]
    In that offer the plaintiff agrees to accept the sum of $48,000 (inclusive of any costs and interest in full settlement of the proceedings).[9]
  1. [31]
    The plaintiff has obtained a more favourable result than the offer to settle dated 25 January 2023.
  1. [32]
    The relevant principles in relation to Calderbank offers were summarised by Bond J in Springfield City Group Pty Ltd v Pipe Networks Pty Ltd (No 2) [2022] QSC 299 at [9]. His Honour identified the following as the relevant proposition, which I adopt:

“First, the usual rule is that where the Court orders the costs of one party to the litigation to be paid by another party, the order is for assessment of those costs on the standard basis.

Second, the Court will depart from the usual rule where the circumstances of the case warrant that course.

Third, one feature which may justify a departure from the usual rule is the rejection of a Calderbank offer to compromise. However, it is wrong to think that an offeree’s rejection of a Calderbank offer gives rise to a presumption that the offeree should pay the offeror’s costs on an indemnity basis if the offeree obtains a less favourable result than contained in the offer. Rather, the correct approach is to consider whether the rejection of the Calderbank offer, in all the circumstances, justifies a departure from the usual rule.

Fourth, the balance between the competing policy considerations of, on the one hand, appropriately encouraging settlement and, on the other, not discouraging potential litigants from bringing their disputes to the courts, is found by applying a test of ‘reasonableness.’ The policy rationale for requiring the offeree to indemnify the offeror for costs incurred after the offeree’s unreasonable rejection of an offer is that, from the time of the unreasonable rejection, notionally the real cause and occasion of the litigation is the unreasonable attitude adopted by the offeree.

Fifth, deciding the critical question of whether the offeree’s rejection of the offer is unreasonable in all the circumstances will always involve matters of judgement and impression. However, the discretion as to costs must be exercised judicially and is subject to review in accordance with the principles set out in House v R (1936) 55 CLR 499 at 505. Without being exhaustive concerning the considerations which should be taken into account, a court should ordinarily have regard to at least the following matters:

  1. (a)
    The stage of the proceeding at which the offer was received;
  2. (b)
    The time allowed to the offeree to consider the offer;
  3. (c)
    The extent of the compromise offered;
  4. (d)
    The offeree’s prospects of success, assessed as at the date of the offer;
  5. (e)
    The clarity with which the terms of the offer were expressed; and
  6. (f)
    Whether the offer foreshadowed an application for indemnity costs in the event of the offeree rejecting it.”
  1. [33]
    In considering the Calderbank offer made 25 January 2023, the relevant considerations summarised by Bond J in Springfield City Group Pty Ltd are to be applied for consideration from (a) to (f).
  1. [34]
    In deciding the fifth and critical question in the test prescribed by Bond J relevant to the current matter –
  • The offer was made after the proceedings had been on foot for 1 year and 4 months and at a time where the defendant had the benefit of considering all of the pleadings and could make an informed decision.
  • The time allowed to the defendant to consider the offer (having regard to the stage of the proceedings) of 14 days was adequate.
  • The compromise was a compromise of the entire claim and costs and interest.
  • The defendant’s prospect of success could be readily assessed at the date of the offer and for the reasons contained in the substantive judgement were poor.
  • The offer was expressed in clear terms.
  • The offer foreshadowed an application for indemnity costs in the event of the defendant (as offeree) rejecting it.
  • The plaintiff has obtained a more favourable result than the Calderbank offer to settle made on 25 January 2023.
  1. [35]
    In all the circumstances I am persuaded that the defendant (as offeree) has unreasonably rejected the offer, justifying a departure from the usual rules and entitling the plaintiff to an order that the defendant paid its costs on an indemnity basis.
  1. [36]
    Either, upon the basis of the offer to settle of 8 March 2023 (the UCPR offer) or the offer on 25 January 2023 (the Calderbank offer), the plaintiff is entitled to its costs of the claim on an indemnity basis.

FIXING COSTS

  1. [37]
    The plaintiff’s submission also seek that the court fix costs, as opposed to ordering that the costs be assessed. In the Magistrates Court, the court may order that the costs of a proceedings be assessed by a Court Assessor – if the Magistrates considers it appropriate because of the nature and complexity of the proceedings.[10]
  1. [38]
    There is a presumption in favour of a Magistrate fixing costs of proceedings and it is only when a case falls into an exceptional category because of its nature and complexity that there might be order for assessment of costs.[11]
  1. [39]
    The plaintiff in seeking that costs be fixed rely on the tax invoices raised by its solicitors HopgoodGanim and incurred disbursements (including counsels fees at trial of $7,700).[12]
  1. [40]
    It would be unusual, even when considering the assessment of costs on an indemnity basis, that for a claim seeking judgement for $50,000 a successful plaintiff would recover $79,000 in costs.
  1. [41]
    In approaching the fixing of costs, I proceed on the basis that fixing costs should not unusually be difficult. It is not intended to involve the rigour of a costs assessment and can reflect a broad approach. It is desirable to fix costs and avoid the time, trouble, delay, and expense that can result from assessment. This is especially the case in the Magistrates Court where the amounts involved in claims are necessarily less than in the District or Supreme Courts.[13]
  1. [42]
    Practice Direction 18 of 2010 deals with fixed costs or costs to be assessed. Paragraph 5 directs the fixing of costs including:
  1. –
    Requiring the beneficiary of the costs order to provide an estimate verified by affidavit.
  1. [43]
    The process of fixing costs in the Magistrates Court, at least in proceeding where the amount involved is less than $50,000, is aided greatly by sch 2 pt 2 of the UCPR. There is no reason why in such cases the parties could not present the necessary evidence to quantify costs on the relevant scale and permit the Magistrate to fix costs and order payment of that amount by the relevant party in accordance with r 683.[14]
  1. [44]
    Schedule 2 Part 2 of the UCPR provides for costs in the Magistrates Court up to $50,000. This was a claim up to $50,000.
  1. [45]
    Schedule 2 Part 3 provides an item-based scale of costs for costs over $50,000.
  1. [46]
    In approaching fixing the plaintiffs costs it is appropriate to have regard to Schedule 2 Part 2 but to provide an uplift to reflect the different basis for assessment (on an indemnity and not standard basis).
  1. [47]
    The items from schedule 2 part 2 that would appear applicable and recoverable by the plaintiff are as follows –

1 - Instructions to sue - $1,491.00.

5 - Preparing for trial up to and including settlement conference $2,325.00

6 - Balance preparing for trial $2,653.00

10 - Solicitor on hearing with counsel $897.35.

12 - Application to the court – dispense with certificate of readiness $747.65 (by order made 1 June 2023 – costs in the cause).

Total – $8,114.00

Counsel’s fees – 8F on trial – $2,246.00.

  • $8K to hear deferred judgment $200.50.

Total – $2446.50.

Total professional fees and counsel fees – $10,560.50.

  1. [48]
    Applying an approximate 100% uplift to the professional fees and counsels’ fees to reflect that they are ordered on an indemnity basis I fix professional costs and counsels fees in the sum of $20,000.
  1. [49]
    The plaintiffs proven disbursements total is $2,007.30.[15]
  1. [50]
    The total professional costs and disbursement are therefore $22,007.30.
  1. [51]
    I fix the plaintiffs costs on an indemnity basis in the sum of $22,007.30.

DISPOSITION

  1. [52]
    I order that the Defendant play the Plaintiff -
  1. 1)
    Interest on the judgment sum in the amount of $12,178.80.
  1. 2)
    Costs on an indemnity basis fixed in the sum of $22,007.30.

Magistrate JNL Pinder

09/12/2024

Footnotes

[1]Civil Proceeding Act 2011 s 58 (8).

[2]Delta Pty Ltd v Mechanical & Construction Insurance Pty Ltd [2019] QCA 62.

[3]UCPR r 681.

[4]UCPR r 702.

[5]UCPR 703.

[6]Calderbank v Calderbank (1976) Fam 93.

[7]r 353.

[8]r 1003.

[9]Annex TGE – 02 p. 26 Affidavit TG. Edwards – 16/8/24.

[10]r 693 (3).

[11]Peter Carter Transport Pty Ltd and Anor v Swansaway No. 2 Pty Ltd [2021] QDC 109, para 46.

[12]See para 7 – Affidavit T.E. Edwards.

[13]Peter Carter Transport Pty Ltd and Anor v Swansaway No. 2 Pty Ltd [2021] QDC 109, para 47.

[14]Peter Carter Transport Pty Ltd and Anor v Swansaway No. 2 Pty Ltd [2021] QDC 109, para 50.

[15]Affidavit T.E. Edwards at para 7.

Close

Editorial Notes

  • Published Case Name:

    Icon Office Solutions Australia Pty Ltd as Trustee of the Brodie Family Trust ACN 083 141 726 v Hughes

  • Shortened Case Name:

    Icon Office Solutions Australia Pty Ltd as Trustee of the Brodie Family Trust ACN 083 141 726 v Hughes

  • MNC:

    [2024] QMC 24

  • Court:

    QMC

  • Judge(s):

    Pinder

  • Date:

    09 Dec 2024

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
2 citations
Jump To
Cite 1 - (1976) Fam 93
Cite 2 - (1976) Fam 93
Delta Pty Ltd v Mechanical and Construction Insurance Pty Ltd[2019] 3 Qd R 438; [2019] QCA 62
2 citations
Jump To
Cite 1 - [2019] QCA 62
Cite 2 - [2019] QCA 62
House v The King (1936) 55 CLR 499
1 citation
Jump To
Cite 1 - (1936) 55 CLR 499
Icon Office Solutions Aust Pty Ltd v Hughes [2024] QMC 13
1 citation
Jump To
Cite 1 - [2024] QMC 13
Peter Carter Transport Pty Ltd v Swansway No. 2 Pty Ltd [2021] QDC 109
4 citations
Jump To
Cite 1 - [2021] QDC 109
Cite 2 - [2021] QDC 109
Cite 3 - [2021] QDC 109
Cite 4 - [2021] QDC 109
Springfield City Group Pty Ltd v Pipe Networks Pty Ltd (No. 2) [2022] QSC 299
2 citations
Jump To
Cite 1 - [2022] QSC 299
Cite 2 - [2022] QSC 299

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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