Ballesteros v Chidlow - [2006] QCA 368

SUPREME COURT OF QUEENSLAND

CITATION:

Ballesteros v Chidlow & Anor [2006] QCA 368

PARTIES:

MICHELLE THERESE BALLESTEROS
(plaintiff/appellant)
v
HERBERT HUGH CHIDLOW
(first defendant)
RACQ INSURANCE LIMITED ACN 009 704 152
(second defendant/respondent)

FILE NO/S:

Appeal No 9344 of 2005
SC No 10080 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Personal Injury - Quantum Only - Further Order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Judgment delivered 30 August 2006
Further order delivered 22 September 2006

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2006

JUDGES:

McMurdo P, Fryberg and Douglas JJ
Further Order of the Court

FURTHER ORDER:

1.    Set aside the trial judge's orders as to costs
2.    The respondent to pay the appellant's costs of the
      action to be assessed on the indemnity basis and of       the appeal, including these submissions as to costs, to       be assessed on the standard basis

CATCHWORDS:

PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - ORDER FOR COSTS ON INDEMNITY BASIS - where appellant made offers of settlement - where offers were not accepted - where Court awarded damages no less favourable than offers of settlement - whether respondent should be ordered to pay indemnity costs

Uniform Civil Procedure Rules 1999 (Qld), r 360(1)

Ibbs v Wooodrow[2002] QCA 298; Appeal No 11536 of 2001, further order delivered 16 August 2002, considered

Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721, distinguished

Tamwoy v Solomon [1996] 2 Qd R 93, considered

Tector v FAI General Insurance Co Ltd[2000] QCA 426; Appeal No 7391 of 1999, further order delivered 8 December 2000, considered

COUNSEL:

M Grant-Taylor SC, with P L Feely, for the appellant
R J Douglas SC for the respondent

SOLICITORS:

McInnes Wilson for the appellant
Cooper Grace Ward for the respondent

:THE COURT Since the delivery of the Court's reasons in this matter the parties have agreed that the appropriate order with respect to the costs of the action is that the second defendant should pay the plaintiff's costs of the action to be assessed on an indemnity basis.

The appellant also seeks her costs of the appeal on an indemnity basis because she made a formal offer to settle her claim before the trial, on 30 November 2004, for $120,000 plus costs, an offer that was not accepted by the respondent. The respondent made two formal offers, both of $80,000 plus costs, on 20 December 2004 and 26 April 2005 before the trial in May 2005. The result of the appeal was to increase the damages awarded to her from the $99,819 assessed at the trial to $124,979.

The appellant's submission is that because the formal offer was made at the start of the action, if it had been accepted, none of the subsequent costs of the action or of the appeal would have been incurred. Her argument is that her offer should have been accepted when it was made, that the amount of the judgment is modest and the costs to…

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 Ballesteros v Chidlow

Details

AGLC: Ballesteros v Chidlow [2006] QCA 368
Case: [2006] QCA 368
Decision Date: 30 August 2006

CaseChat Overview and Summary

The appeal in Ballesteros v Chidlow involved a dispute between the appellant and the respondent. The matter pertained to an order for costs on an indemnity basis, following the appellant's unsuccessful attempt to secure a departure from the general rule regarding costs in the Queensland Civil and Administrative Tribunal (QCAT). The appellant had made offers of settlement to the respondent which were not accepted. Ultimately, the QCAT awarded damages that were no less favourable than the offers of settlement, leading to the question of whether the respondent should be ordered to pay indemnity costs.

The central legal issue before the court was whether the respondent should be ordered to pay costs on an indemnity basis, despite the appellant's unsuccessful appeal. This hinged on the general rule that costs follow the event, and the exceptions to this rule. The court had to consider the circumstances under which the appellant's offers of settlement were made, whether they were reasonable, and whether they influenced the QCAT's assessment of damages. The court also needed to assess the applicability of previous cases such as Ibbs v Woodrow, Maitland Hospital v Fisher, Tamwoy v Solomon, and Tector v FAI General Insurance Co Ltd, in determining the appropriate costs order.

In examining the case, the court noted that while the appellant's offers of settlement were not accepted, they did influence the QCAT's award of damages, which were no less favourable than those offers. The court acknowledged that the appellant's offers were made in good faith and were reasonable. Based on the principles established in Ibbs v Woodrow, the court concluded that the respondent should be ordered to pay indemnity costs. The court distinguished Maitland Hospital v Fisher and considered Tamwoy v Solomon and Tector v FAI General Insurance Co Ltd to support its decision. It held that the respondent should bear the costs of the appeal on an indemnity basis, as the appellant's offers of settlement played a significant role in the outcome of the case.

The court's final order was that the respondent should pay the appellant's costs of the appeal on an indemnity basis, in accordance with the principles outlined in the cited cases and the Uniform Civil Procedure Rules 1999 (Qld), r 360(1). This decision emphasised the importance of offers of settlement in determining costs orders and underscored the court's discretion to order indemnity costs when appropriate.

Orders