John Goss Projects Pty Ltd v Theiss Watkins White Constructions Ltd

[3] The trial was conducted essentially on the basis that the plaintiff had overstated the nature and extent of his disabilities and their consequences. The defendant relied on video surveillance material.

[4] On 16 June 2000 the plaintiff delivered an offer to settle the action, the relevant terms of the offer are:

"The plaintiff offers the sum of $275,000 (two hundred and seventy five thousand) plus party/party costs and outlays on the Supreme Court scale clear of all statutory refunds (including workcover) of the action to the date of acceptance of this offer in satisfaction of the plaintiff's claims".

The offer was expressed to be open for acceptance for fourteen days. It was not accepted and lapsed. The defendant did not make a counter offer or itself make a formal offer to settle.

[5] Taking into account statutory refunds the plaintiffs offer was effectively:

[6] It may be noted that the Uniform Civil Procedure Rules, which came into force on 1 July 1999 effectively, abolished the taxation of costs on a party and party basis and substituted an assessment of costs on a standard basis. No point was taken about that aspect of the offer and nothing appears to turn on it.

[7] It follows that in terms of UCPR360 (1) the plaintiff made an offer to settle which was not accepted and obtained a judgement not less favourable than that offer. There is no occasion to doubt that in terms of UCPR360 (1)(b) that the plaintiff was at all material times willing and able to carry out what was proposed in the offer. In those circumstances the court "must order the defendant to pay the plaintiff's costs calculated on an indemnity basis unless the defendant shows another order for costs is appropriate in the circumstances".

[8] In considering an offer to settle the recipient must make a judgment, balancing the benefits of accepting the offer against the risks of proceeding to judgment, accordingly the benefits must be explicit or reasonably ascertainable; John Goss Projects Pty Ltd v Theiss Watkins White Constructions Ltd (in liquidation) 1995(2) QdR 591 at 595, Duncan and Weller v Mendelson 1989 VR 396 at 400, Friend (formally Jones) v Rye 2001 QSC 12. Part of the balancing exercise to which I have referenced involves considering whether to make a decision on the available information or to seek further information.

[9] In seeking to demonstrate that another order for costs is appropriate in the circumstances the defendant points to the following considerations:

* On 13 June 2000 (three days before the delivery of the offer to settle) the plaintiff has been ordered to serve a statement of loss of damage within seven days but did not comply with the order.

* The statement of claim filed on November 1999 did not conform with the requirements of UCPR150 (1)(b) and 155. It did not state the nature and the amount of damages claimed or the type and the nature of damage claimed for each type or the basis which amount claimed had been worked out or estimated. Nor was there any detail given of any special damages.

* The offer to settle was expressed to be clear of all statutory refunds, the amount of the workcover refund was known but it had no way of knowing what other statutory refunds might be payable and what the amounts of them might be without the delivery of the statement of loss and damage.

* The statement of loss and damage served on 17 July 2001 did not supply details of economic loss stating that particulars would be received on receipt of an account's report.

* The statement of loss and damage included claims found at trial to have an "unrealistic air of precision", were not sustained by the evidence or were unsustainable.

* Video surveillance evidence "raised significant doubts as to the voracity of the plaintiff's complaints".

* It was submitted that given these considerations it was "not unreasonable to suspect that the significant head of damage, economic loss was also significantly overstated."

[10] There is no basis for concluding that the defendant's solicitors could not have readily ascertained what refunds would have to be made and the relevant amount. Indeed it would be surprising if these issues had not been covered at the settlement conference held before the issue of the writ.

[11] No point was taken about the defects in the statement of claim prior to the defendant's submissions on costs

[12] It may be true that the plaintiff was in breach of Byrne J's order. There had been a settlement conference.

[13] On 23 March 2000 the plaintiff's solicitors delivered a list of documents containing medical reports, income tax returns, workcover documents and salary information. On 15 June 2000 the plaintiff delivered a draft statement of loss and damage and a settlement conference was held at which the defendant made an informal offer which was rejected.

[14] There is no evidence that the defendants took the point that they could not make a judgment on the offer with the information they had when it was made.

[15] Put shortly, an offer for settlement was made. The defendant exercised a professional judgment on the basis of the information to hand and take to chance bettering it and failed.

[16] In my view the defendant has not shown that another order for costs is appropriate and should pay the plaintiff's costs assessed on an indemnity basis.