Ballandis v Swebbs (No 2) - [2014] QDC 143

DISTRICT COURT OF QUEENSLAND

CITATION:

Ballandis v Swebbs & Anor (No 2) [2014] QDC 143

PARTIES:

CHRISTOPHER BALLANDIS
(plaintiff)

v

JACK JOSEPH SWEBBS
(first defendant)

and

AAI LIMITED ACN 48 005 297 807 TRADING AS SUNCORP METWAY INSURANCE LIMITED ACN 075 695 966
(second defendant)

FILE NO/S:

D2/13

DIVISION:

Trial

PROCEEDING:

Civil

ORIGINATING COURT:

Rockhampton District Court

DELIVERED ON:

19 June 2014

DELIVERED AT:

Rockhampton

HEARING DATE:

Hearing on the papers.

JUDGE:

Smith DCJ

ORDER:

1.   The second defendant is to pay the plaintiff’s costs of and incidental to the proceeding as agreed or assessed on a standard basis up to but not including 8 January 2013 on the District Court Scale and not in excess of the declared costs limit of $2,500.

2.   The plaintiff is to pay the second defendant’s costs of and incidental to the proceeding from 8 January 2013 as agreed or to be assessed on the standard basis on the District Court Scale (with the exception of costs relating to investigations and the gathering of evidence after the date of the compulsory conference which includes the reserved costs of and incidental to the application filed on 24 March 2014).

3.   The second defendant is to pay the plaintiff’s costs relating to investigations and the gathering of evidence after the date of the compulsory conference which includes the reserved costs of and incidental to the application filed on 24 March 2014 as agreed or to be assessed on the standard basis on the District Court scale.

4.   That the net assessed costs ordered to be paid by the plaintiff be set off against the judgment sum prior to any payment by the second defendant to the plaintiff of any part of the judgment sum.

5.   Liberty to apply.

CATCHWORDS:

COSTS- where the judgment for the plaintiff was not greater than the mandatory final offer or of offers made under UCPR- costs of investigations and application after the compulsory conference

Motor Accident Insurance Act 1994 (Q) ss 4, 51B, 51C, 55F

Uniform Civil Procedure Rules 1999 (Q) r 361, 681

Motor Accident Insurance Regulations 2004 (Q) r 27A

Ballandis v Swebbs and Anor [2014] QDC 129

Calderbank v Calderbank [1975] 3 All ER 333

Distant v Queensland Rail [2002] QSC 271

Gitsham v Suncorp Metway Insurance Ltd [2003] 2 Qd R 251

Ross v Suncorp Metway Insurance Ltd [2002] QCA 93

Sheridan v Warrina Community Co-operative Ltd & Anor [2004] QCA 308

COUNSEL:

Written Submissions from the plaintiff received 10 June 2014, written submissions from the second defendant received 10 June 2014, further written submissions from the second defendant received 11 June 2014. Further written submissions from the plaintiff received 18 June 2014.

SOLICITORS:

O’Donnell Legal for the plaintiff

Quinlan Miller and Treston for the second defendant

Introduction

This is the decision with respect to costs consequent on the decision in Ballandis v Swebbs & Anor [2014] QDC 129.

In that matter I gave judgment in favour of the plaintiff against the second defendant in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ballandis v Swebbs (No 2)

Details

AGLC: Ballandis v Swebbs (No 2) [2014] QDC 143
Case: [2014] QDC 143
Decision Date: 19 June 2014

CaseChat Overview and Summary

In the case of Ballandis v Swebbs and Anor, the plaintiff, Ballandis, pursued a claim against the second defendant, Swebbs, for damages related to a motor accident. The dispute arose under the Motor Accident Insurance Act 1994 and the Motor Accident Insurance Regulations 2004, with specific focus on the allocation of costs incurred during the litigation process. The matter was heard and determined in the Queensland District Court. The plaintiff sought a ruling on the allocation of costs incurred before and after a compulsory conference, in line with the Uniform Civil Procedure Rules 1999.

The primary legal issue before the court was to determine the appropriate allocation of costs incurred by both parties in the course of the litigation, particularly those related to investigations and evidence gathering post the compulsory conference. The court had to consider whether the plaintiff's costs incurred after the compulsory conference should be borne by the plaintiff or the second defendant. The court also needed to address the plaintiff's entitlement to costs associated with specific applications made after the compulsory conference.

The court ruled that the second defendant was liable for the plaintiff’s costs of and incidental to the proceeding up until 7 January 2013, to be assessed on a standard basis according to the District Court Scale. Conversely, from 8 January 2013 onwards, the plaintiff was to bear their own costs, with the exception of those related to investigations and the gathering of evidence post the compulsory conference, which the second defendant was to cover. The court's decision was influenced by precedents such as Calderbank v Calderbank, Distant v Queensland Rail, Gitsham v Suncorp Metway Insurance Ltd, Ross v Suncorp Metway Insurance Ltd, and Sheridan v Warrina Community Co-operative Ltd & Anor. The court ordered that the net assessed costs to be paid by the plaintiff be set off against the judgment sum before any payment by the second defendant to the plaintiff.

In summary, the court's final orders mandated that the second defendant was to pay the plaintiff's pre-conference costs up to a specified limit, while the plaintiff was to cover post-conference costs except for those related to investigations and evidence gathering after the compulsory conference, which the second defendant was to cover. The court also directed that the net assessed costs to be paid by the plaintiff be set off against the judgment sum before any payment by the second defendant. The plaintiff was granted liberty to apply for further orders if necessary.

Orders

Orders of the court

1. The second defendant is to pay the plaintiff’s costs of and incidental to the proceeding as agreed or assessed on a standard basis up to but not including 8 January 2013 on the District Court Scale and not in excess of the declared costs limit of $2,500.

2. The plaintiff is to pay the second defendant’s costs of and incidental to the proceeding from 8 January 2013 as agreed or to be assessed on the standard basis on the District Court Scale (with the exception of costs relating to investigations and the gathering of evidence after the date of the compulsory conference which includes the reserved costs of and incidental to the application filed on 24 March 2014).

3. The second defendant is to pay the plaintiff’s costs relating to investigations and the gathering of evidence after the date of the compulsory conference which includes the reserved costs of and incidental to the application filed on 24 March 2014 as agreed or to be assessed on the standard basis on the District Court scale.

4. That the net assessed costs ordered to be paid by the plaintiff be set off against the judgment sum prior to any payment by the second defendant to the plaintiff of any part of the judgment sum.

5. Liberty to apply.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ballandis v Swebbs & Anor (No 2) [2014] QDC 143
PARTIES:	CHRISTOPHER BALLANDIS (plaintiff) v JACK JOSEPH SWEBBS (first defendant) and AAI LIMITED ACN 48 005 297 807 TRADING AS SUNCORP METWAY INSURANCE LIMITED ACN 075 695 966 (second defendant)
FILE NO/S:	D2/13
DIVISION:	Trial
PROCEEDING:	Civil
ORIGINATING COURT:	Rockhampton District Court
DELIVERED ON:	19 June 2014
DELIVERED AT:	Rockhampton
HEARING DATE:	Hearing on the papers.
JUDGE:	Smith DCJ
ORDER:	1. The second defendant is to pay the plaintiff’s costs of and incidental to the proceeding as agreed or assessed on a standard basis up to but not including 8 January 2013 on the District Court Scale and not in excess of the declared costs limit of $2,500. 2. The plaintiff is to pay the second defendant’s costs of and incidental to the proceeding from 8 January 2013 as agreed or to be assessed on the standard basis on the District Court Scale (with the exception of costs relating to investigations and the gathering of evidence after the date of the compulsory conference which includes the reserved costs of and incidental to the application filed on 24 March 2014). 3. The second defendant is to pay the plaintiff’s costs relating to investigations and the gathering of evidence after the date of the compulsory conference which includes the reserved costs of and incidental to the application filed on 24 March 2014 as agreed or to be assessed on the standard basis on the District Court scale. 4. That the net assessed costs ordered to be paid by the plaintiff be set off against the judgment sum prior to any payment by the second defendant to the plaintiff of any part of the judgment sum. 5. Liberty to apply.
CATCHWORDS:	COSTS- where the judgment for the plaintiff was not greater than the mandatory final offer or of offers made under UCPR- costs of investigations and application after the compulsory conference Motor Accident Insurance Act 1994 (Q) ss 4, 51B, 51C, 55F Uniform Civil Procedure Rules 1999 (Q) r 361, 681 Motor Accident Insurance Regulations 2004 (Q) r 27A Ballandis v Swebbs and Anor [2014] QDC 129 Calderbank v Calderbank [1975] 3 All ER 333 Distant v Queensland Rail [2002] QSC 271 Gitsham v Suncorp Metway Insurance Ltd [2003] 2 Qd R 251 Ross v Suncorp Metway Insurance Ltd [2002] QCA 93 Sheridan v Warrina Community Co-operative Ltd & Anor [2004] QCA 308
COUNSEL:	Written Submissions from the plaintiff received 10 June 2014, written submissions from the second defendant received 10 June 2014, further written submissions from the second defendant received 11 June 2014. Further written submissions from the plaintiff received 18 June 2014.
SOLICITORS:	O’Donnell Legal for the plaintiff Quinlan Miller and Treston for the second defendant