Surman v Gateway Lawyers [2025] QSC 346 | Case summary

[1] On 7 November 2025, I gave judgment dismissing Mr Surman's claim on the basis that it was statute-barred.[1] These reasons, which address the outstanding question of costs, use the same defined terms as were used in the earlier judgment.
[2] Mr Surman, who is self-represented, did not appear in court when I delivered judgment. Following the delivery of judgment, Mr McCarthy, who appeared as counsel for Gateway, indicated that he had instructions to seek an order that Mr Surman pay Gateway's costs on the indemnity basis by reference to an offer made to settle the proceeding. Mr Surman's failure to appear when judgment was delivered meant that issue could not be argued that day. Instead, I made directions for the sequential filing of written submissions on costs.
[3] On 14 November 2025, in accordance with those directions, Gateway filed and served submissions on costs setting out the basis upon which it sought an order for indemnity costs, together with a supporting affidavit of its solicitor exhibiting the offer to settle.
[4] The directions then required that Mr Surman file and serve his written submissions on costs by 28 November 2025. He failed to do so.
[5] On 3 December 2025, I instructed my Associate to send an email to the parties informing them that I intended to relist the matter to raise an issue which arose from Gateway's written submissions. Later that day, Gateway's solicitors responded to that email stating that Mr McCarthy had reviewed Gateway's costs submissions and noticed an error in them. Gateway sought leave to file short supplementary submissions to correct that error. I granted leave and Gateway filed and served the supplementary costs submissions the next day.
[6] As a consequence of Gateway filing supplementary costs submissions, I extended the time for Mr Surman to file submissions on costs to 12 December 2025. On 4 December 2025, I instructed my Associate to send an email to the parties notifying them of that extension. That email also notified Mr Surman that if he did not file submissions by that extended date, I would proceed to determine the issue of costs.
[7] Mr Surman did not comply with the direction to file written submissions on costs by 12 December 2025.
[8] Gateway seeks an order for costs on the indemnity basis pursuant to r 361A of the Uniform Civil Procedures Rules 1999 (Qld) (UCPR), which provides:

Surman v Gateway Lawyers [2025] QSC 346 | Case summary | Zoe

[1] On 7 November 2025, I gave judgment dismissing Mr Surman's claim on the basis that it was statute-barred.[1] These reasons, which address the outstanding question of costs, use the same defined terms as were used in the earlier judgment.
[2] Mr Surman, who is self-represented, did not appear in court when I delivered judgment. Following the delivery of judgment, Mr McCarthy, who appeared as counsel for Gateway, indicated that he had instructions to seek an order that Mr Surman pay Gateway's costs on the indemnity basis by reference to an offer made to settle the proceeding. Mr Surman's failure to appear when judgment was delivered meant that issue could not be argued that day. Instead, I made directions for the sequential filing of written submissions on costs.
[3] On 14 November 2025, in accordance with those directions, Gateway filed and served submissions on costs setting out the basis upon which it sought an order for indemnity costs, together with a supporting affidavit of its solicitor exhibiting the offer to settle.
[4] The directions then required that Mr Surman file and serve his written submissions on costs by 28 November 2025. He failed to do so.
[5] On 3 December 2025, I instructed my Associate to send an email to the parties informing them that I intended to relist the matter to raise an issue which arose from Gateway's written submissions. Later that day, Gateway's solicitors responded to that email stating that Mr McCarthy had reviewed Gateway's costs submissions and noticed an error in them. Gateway sought leave to file short supplementary submissions to correct that error. I granted leave and Gateway filed and served the supplementary costs submissions the next day.
[6] As a consequence of Gateway filing supplementary costs submissions, I extended the time for Mr Surman to file submissions on costs to 12 December 2025. On 4 December 2025, I instructed my Associate to send an email to the parties notifying them of that extension. That email also notified Mr Surman that if he did not file submissions by that extended date, I would proceed to determine the issue of costs.
[7] Mr Surman did not comply with the direction to file written submissions on costs by 12 December 2025.
[8] Gateway seeks an order for costs on the indemnity basis pursuant to r 361A of the Uniform Civil Procedures Rules 1999 (Qld) (UCPR), which provides:

[7]

[9] I am satisfied that the three requirements set out in r 361A(1) are met in this case.
[10] First, Gateway relies on an offer it made on 30 September 2024. On that day, Gateway's solicitors sent an email to Mr Surman which stated that Gateway was prepared to resolve the claim on the terms set out in a Settlement Deed that was attached to the email. The covering email stated that Gateway's offer was made pursuant to Part 5 of Chapter 9 of the UCPR (in which r 361A appears). The offer was open for acceptance for 21 days and could be accepted by Mr Surman signing and returning the Settlement Deed.
[11] Gateway offered to pay Mr Surman the sum of $10,000 (inclusive of costs and interest) within 28 days of execution of the Settlement Deed in return for Mr Surman discontinuing the proceeding and releasing Gateway from any claims arising from the dispute the subject of the proceeding.
[12] Mr Surman did not accept the offer contained in the Settlement Deed. Accordingly, the requirement in r 361A(1)(a) is met.
[13] Second, the requirement in r 361A(1)(b) is met because, as already observed, the claim was dismissed on 7 November 2025.
[14] Third, the requirement in r 361A(1)(c) is met because I am satisfied that Gateway, which was indemnified under an insurance policy and represented by solicitors, was at all times willing and able to perform the terms of the Settlement Deed if Mr Surman had executed it.
[15] It follows that r 361A applies such that I must order that Mr Surman pay Gateway's costs calculated on the basis prescribed in r 361A(2) unless Mr Surman shows that another order for costs is appropriate in the circumstances.
[16] Gateway submits that the presumptive position established under r 361A(2) has not been displaced in the circumstances of this case. Although Gateway acknowledges that Mr Surman's status as a self-represented litigant may be relevant to that issue - because a self-represented litigant might face greater difficulty in assessing whether to accept an offer to settle than a represented litigant - it submits that Mr Surman was informed of the basis upon which Gateway contended the claim would be dismissed.
[17] Gateway's written submissions on costs initially advanced that argument by asserting that Mr Surman had been served with Gateway's opening submissions for the trial before he received the offer to settle. That submission was advanced on an incorrect factual basis: namely, that the opening submissions for trial were served on the plaintiff on 22 September 2025 and the offer to settle was made on 30 September 2025. As observed at [10] above, the offer to settle was sent on 30 September 2024, almost a year before the opening submissions were filed and served. That error was corrected by Gateway's supplementary written submissions.
[18] Gateway accepts that Mr Surman did not have the opening submissions when he received the offer to settle. Nevertheless, Gateway maintains the submission that Mr Surman was informed of the basis upon which his claim would be dismissed before he received the offer. That notice was provided by the amended defence, filed on 11 September 2024, in which Gateway pleaded the basis of its limitation defence. Furthermore, the recitals to the Settlement Deed sent to Mr Surman on 30 September 2024 summarised the circumstances which preceded the decision of Jackson J which resulted in the transfer of the Alice Street unit to Ashala. Recital N of the Settlement Deed specifically referred to Gateway's defence that the claim was statute-barred.
[19] In those circumstances, I do not consider that Mr Surman's status as a self-represented litigant is sufficient on its own to warrant a departure from the presumptive position established under r 361A(2). Ultimately, the onus was on Mr Surman to show that some other order as to costs is appropriate in the circumstances of this case. Mr Surman has not filed any costs submissions or supporting materials. He has not discharged the onus on him.
[20] For these reasons, the orders as to costs will be that Mr Surman pay Gateway's costs of and incidental to the proceeding, including any reserved costs -

Surman v Gateway Lawyers

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