Daly v D A Manufacturing Co P/L & Anor [2003] QCA 331

Daly v D A Manufacturing Co P/L & Anor [2003] QCA 331 - QCA 2003 case summary — Zoe

[1]

[1] THE COURT: On 4 July 2003 the court allowed an appeal by the defendant and substituted an award of damages to the plaintiff in the sum of $240,957.00 for the sum of $370,392.84 originally assessed by the trial judge on the basis of his finding that the defendant was wholly liable. The court then gave the parties leave to make written submissions as to costs; those submissions have now been received.

[2]

[2] Prior to trial the plaintiff, the present respondent, made a formal offer to settle complying with the UCPR for the sum of $170,000.00 plus costs; that was not accepted by the defendant. Because the assessment by the trial judge exceeded that offer the plaintiff obtained an order for costs of the trial on an indemnity basis. That costs order is not affected by the order made in this court.

[3]

[3] Prior to the hearing of the appeal the defendant (present appellant) made an offer to settle in the sum of $190,000.00. That offer was not accepted.

[4]

[4] On the hearing of the appeal the respondent-plaintiff sought to uphold the judgment in full. The appellant, in addition to challenging the assessment of quantum, contended that the learned trial judge should have concluded that no duty of care was owed by the appellant to the respondent. In the alternative the submission was made that there should have been a finding of contributory negligence. This court upheld the trial judge's conclusion on liability.

[5]

[5] In all of those circumstances the appellant seeks an order that the respondent pay its costs of and incidental to the appeal to be assessed on the standard basis, and the respondent seeks an order that the appellant pay his costs of the appeal either on an indemnity or standard basis.

[6]

[6] The court is mindful of what has been said on this topic in Tamwoy v Solomon [1995] QCA 447; [1996] 2 Qd R 93, Tector v FAI General Insurance Co Ltd [2000] QCA 426; [2001] 2 Qd R 463, and Deepcliffe P/L & Anor v The Council of the City of Gold Coast & Anor [2001] QCA 396. In the circumstances the court is not satisfied that proper grounds exist for exercising the relevant discretion by ordering the successful appellant to pay the respondent's costs.

[7]

[7] A substantial portion of the hearing of the appeal, which lasted less than one day, was taken up with submissions on the issue of liability on which the appellant failed.

[8]

[8] Against the background of all that is said herein the appropriate order is one which would oblige the respondent to pay the appellant's costs of the appeal limited to the costs of and incidental to the appeal on the issue of quantum.

[9]

1. Order that the respondent pay the appellant's costs of the appeal to be assessed, but limited to the appellant's costs of and incidental to the appeal on quantum.

At a glance

Court

Decision date

Before

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Source

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Judgment (9 paragraphs)

Parties