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[2019] QCA 207
Court of Appeal (Qld)
2019-10-04
Gotterson and McMurdo JJA and Douglas J
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Hanson & Anor v Goomboorian Transport Pty Ltd & Ors [2019] QCA 207
PARTIES: In Appeal No 7390 of 2018; Appeal No 9804 of 2018 and Appeal No 9806 of 2018: / DOROTHY MAUREEN HANSON / (first appellant) / NORMAN RICHARD HANSON / (second appellant) / v / GOOMBOORIAN TRANSPORT PTY LTD / ACN 011 054 658 / (first respondent) / J & M LOGHANDLING PTY LTD / ACN 011 054 667 / (second respondent) / BELLING INVESTMENTS PTY LTD / ACN 123 710 734 / (third respondent) / GOOMBOORIAN LOGGING PTY LTD / ACN 076 970 995 / (fourth respondent) / LITTLE YABBA DROUGHTMASTER STUD PTY LTD / ACN 086 875 845 / (fifth respondent) / EMMERDALE FARMING PTY LTD / ACN 151 515 909 / (sixth respondent) / JILRAY PTY LTD / ACN 058 181 463 / (seventh respondent) / J & M FARMING PTY LTD / ACN 086 991 291 / (eighth respondent) / J & M FARMING PTY LTD and LITTLE YABBA DROUGHTMASTER STUD PTY LTD / ABN 89 152 178 639 / (ninth respondent) / JOHN GERHARD BELLING / (tenth respondent) / MARLENE ANNE BELLING / (eleventh respondent)
FILE NO/S: Appeal No 7390 of 2018 / Appeal No 9804 of 2018 / Appeal No 9806 of 2018 / SC No 4392 of 2015
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal – Further Orders
ORIGINATING COURT: Supreme Court at Brisbane – [2018] QSC 135; [2018] QSC 182; [2018] QSC 189 (Bond J)
DELIVERED ON: 4 October 2019
DELIVERED AT: Brisbane
HEARING DATE: Heard on the papers
JUDGES: Gotterson and McMurdo JJA and Douglas J
ORDERS: In each appeal: / together with, in each instance, interest thereon pursuant to the Civil Proceedings Act 2011 from 10 February 2015 to the date of this order. / (a) The second and third defendants are to pay the plaintiffs’ costs, calculated on the standard basis, up to and including 28 March 2017; / (b) The plaintiffs are to pay the second and third defendants’ costs, calculated on the indemnity basis, from 29 March 2017.
CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the Court ordered further submissions from the parties with respect to further orders and the costs of the proceeding at first instance – where the respondents enjoyed a measure of success in the proceedings – where the appellants served a written offer to settle the respondents’ claims in full before the first date of the trial which was not accepted – where the offer made by the appellants exceeded the total monetary value of the orders made and the appellants’ recoverable costs to that point – whether the decision to reject the Calderbank offer made by the appellants was unreasonable or imprudent / Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298, cited / McBride v ASK Funding Ltd [2013] QCA 130, applied
COUNSEL: The appellants’ submissions were heard on the papers / The respondents’ submissions were heard on the papers
SOLICITORS: Baldwins Lawyers for the appellants / Griffith Hack for the respondents
Order 4(b) issue – submissions and further order
Order 4(c) issue – submission and further order
This issue concerns the costs of the proceeding at first instance up to the present. Both the appellants and the respondents made written submissions with respect to it.
This is a case in which the plaintiffs at first instance have enjoyed a measure of success. A claim for declaratory relief in their favour of an equitable lien in the amount of $12,622.22 over the home of the appellants, who were the second and third defendants at first instance, was made. That amount equalled the monetary value of benefits those defendants received for which they admitted they were liable to account to the plaintiffs. An appeal against the declaration was not pursued.
Further, some of the respondents have the benefit of orders made by this Court which together entitled them to 4/95ths of the proceeds of the life policy. That portion of the proceeds had a monetary value of $60,088.44 ($15,022.11 x 4) at the date of payment of the policy. This success was, however, very modest in comparison with the claim made by the plaintiffs to the entirety of the proceeds of the policy, some $1,427,100.41.
The trial commenced on 3 April 2017 and was heard over five days. No admissions were made as to the provenance of the funds which the deceased had used to pay monthly premiums on the policy. Ultimately, the plaintiffs were able to prove that four of the 95 premiums that were paid were sourced in funds that the deceased had stolen from some of the plaintiffs.
A relevant consideration is that on 28 March 2017, and before the first day of the trial, the second and third defendants served a written offer to settle the plaintiffs’ claims in full for $500,000 with each party to pay its own costs. The offer was open for acceptance until 4 pm on 31 March 2017. It was not accepted.
This offer stated that it was “made pursuant to the principles described in Calderbank v Calderbank”. It did not contain a statement that it was made under Part 5 of Chapter 9 UCPR. It was therefore not an offer to which Part 5 applies: r 353(3).
Consistently with the decision of this Court in McBride v ASK Funding Ltd,1 the costs consequences of the failure to accept the offer fall to be determined according to the principles in Calderbank, and not by the application of r 361 UCPR. The central question posed by those principles is whether the plaintiffs acted “unreasonably or imprudently” in not accepting the offer.
I now turn to consider that question. I do so with the benefit of the exposition by the Court of Appeal of Victoria in Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) of the matters to which a court ought ordinarily have regard in considering whether a rejection of a settlement offer was unreasonable.
Orders
together with, in each instance, interest thereon pursuant to the Civil Proceedings Act 2011 from 10 February 2015 to the date of this order.
As to the costs, including reserved costs, of Proceeding No 4392 of 2015, (a)The second and third defendants are to pay the plaintiffs’ costs, calculated on the standard basis, up to and including 28 March 2017;(b)The plaintiffs are to pay the second and third defendants’ costs, calculated on the indemnity basis, from 29 March 2017.
McMURDO JA: I agree with Gotterson JA.
DOUGLAS J: I agree with Gotterson JA.
Hanson & Anor
Goomboorian Transport Pty Ltd & Ors [2019] QCA 207
(2005) 13 VR 435
Here, the offer was made shortly before the commencement of the trial and at a time when the pre-trial steps had been completed. At that point, the plaintiffs were in a position to well appreciate the issues in dispute and to assess realistically their prospects of success. The time allowed for acceptance was not unreasonable.
At that time, the plaintiffs would have known that on the admissions, they had a viable claim to $12,622.22. They would have known also how many of the premiums on the policy they could prove had been made from stolen monies. As well, they would, or ought to, have known that authority at the highest judicial level supported a claim which was limited to the fractional share of the proceeds of the policy attributable to those four premiums, $60,088.44.
Allowing for interest on those components to the date of the offer, the combined value of the orders to the plaintiffs was less than $80,000. Ms KA Stonier, a principal of the respondents’ solicitors, has made an affidavit in which she estimates the amount of the plaintiffs’ recoverable costs up to 28 March 2017. It is slightly less than $400,000. Hence, the offer made by the second and third defendants exceeded the total of the monetary value of the orders made and the only assessment put before this Court of the plaintiffs’ recoverable costs to that point. That that was very likely to be so was reasonably ascertainable at the time when the offer was rejected. I would add that it is unnecessary for present purposes to consider whether the estimate is a reasonable one.
I am satisfied that the second and third defendants were at all times willing and able to make the payment that they had offered. They could have readily done that from the proceeds of the policy.
The terms of the offer were clearly expressed. Although no reference was expressly made to indemnity costs, it would have been obvious to the plaintiffs’ legal representatives to whom the offer was addressed, that it signalled an intention to pursue indemnity costs conformably with the principles in Calderbank.
For these reasons, I have come to the conclusion that the rejection of the offer was unreasonable. It follows, in my view, that the second and third defendants should pay the plaintiffs’ costs assessed on the standard basis up to and including 28 March 2017, but that the plaintiffs should pay the costs of those defendants assessed on the indemnity basis from 29 March 2017.