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Balnaves v Smith

Balnaves v Smith

Case [2012] QSC 408 14 December 2012

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SUPREME COURT OF QUEENSLAND

CITATION:

Balnaves v Smith [2012] QSC 408

PARTIES:

NEIL RICHARD BALNAVES

(Plaintiff)

V

NEIL CLIFFORD SMITH

(First Defendant)

AND

ACN 060 759 382 PTY LTD

(Second Defendant)

FILE NO/S:

BS1391/2005

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

Brisbane

DELIVERED ON:

14 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2012 and 7 November 2012

JUDGE:

Byrne SJA

ORDER:

CATCHWORDS:

PROCEDURE – OFFER TO SETTLE – COSTS - Where defendant made formal offer to settle in accordance with Chapter 9, Part 5 of the Uniform Civil Procedure Rules –where offer more favourable to plaintiff than judgment – where plaintiff alleges that the inclusion of non-monetary terms in offer means that it is not a valid offer to settle under Chapter 9, Part 5 of the Uniform Civil Procedure Rules – where offer to settle contains a requirement of confidentiality – where offer to settle contains the requirement for consent discontinuance – where offer to settle extends to matters which are not the subject of the claims in the proceedings

Uniform Civil Procedure Rules 1999, r5, 307, 308A, 353, 354, 355, 358, 360, 361, 365

A J Lucas Drillings Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd (No 2) [2010] VSCA 128, cited

A L Powell Holdings Pty Ltd v Dick [2012] QCA 254, cited

Armstrong v Mitchell-Smith and Allianz Australia Insurance Limited (No 2) [2012] QSC 370, cited

Australian Medical Innovations Pty Ltd v GO Medical Industries Pty Ltd, Supreme Court of Western Australia (Wallwork J), 22 April 1996, BC9601613, cited

Balnaves v Smith & Anor [2012] QSC 192, cited
Cameron v Nominal Defendant [2001] 1 QdR 476, cited

Charlotte Dawson v ACP Publishing Pty Ltd [2007] NSWSC 542, cited

Coombes v Roads and Traffic Authority (No 2) [2007] NSWCA 70, cited

Dover Beach Pty Ltd v Geftine Pty Ltd [2008] VSCA 248, cited

Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 322, cited

Godin v Godin [2004] WASCA 186, cited

Hodgson v Canadian Newspapers Co (2003) 65 OR (3d) 626; 228 DLR (4^th) 732; 2003 CanLII 44877, cited

Hunger Project v Council on Mind Abuse (COMA) Inc. (1995) 22 OR (3d) 29; 121 DLR (4^th) 734; 1995 CanLII 7390, cited

KGRV Resort Operations Pty Ltd v Chilcott (2001) 51 NSWLR 516, cited

Partridge v Hobart City Council (No 2) [2011] TASSC 35, cited
Preti v Sahara Tours Pty Ltd [2008] NTCA 2, cited
Reuter v Fraser Estate 2000 Carswell Ont 3670, (2000) 143 O.A.C. 388 (Div. Ct.), cited

Rooney (Litigation Guardian of) v Gray 53 OR (3d) 685, 198 DLR (4^th) 1; 2001 CanLII 24064, followed

Stewart v Canadian Broadcasting Corp 1997 OTC Lexis 4182; 38 OTC 345; 1997 CanLII 12324, cited

Taske v Occupational & Medical Innovations Ltd [2007] QSC 147, not followed

The Uniting Church v Takacs (No 2) [2008] NSWCA 172, cited

Timms v Clift [1998]…

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 Balnaves v Smith

Details

AGLC: Balnaves v Smith [2012] QSC 408
Case: [2012] QSC 408
Decision Date: 14 December 2012

CaseChat Overview and Summary

The case of Balnaves v Smith, involved the plaintiff, Balnaves, and the defendant, Smith, in a dispute concerning the validity of a settlement offer made by Smith under Chapter 9, Part 5 of the Uniform Civil Procedure Rules. The plaintiff argued that the inclusion of non-monetary terms in Smith's offer rendered it invalid as a formal offer to settle. These non-monetary terms included a requirement for confidentiality and a requirement for consent discontinuance, as well as extending to matters not directly related to the claims in the proceedings. The case was heard and determined by the Supreme Court of South Australia.

The legal issues before the court were whether the non-monetary terms in Smith's offer to settle rendered it invalid under the Uniform Civil Procedure Rules, and whether the court could order costs in favour of the plaintiff if the offer was more favourable than the ultimate judgment. The court needed to consider the nature of the non-monetary terms and their impact on the validity of the offer, as well as the appropriate exercise of discretion in awarding costs.

In delivering the judgment, the court held that the inclusion of non-monetary terms in the offer did not render it invalid as a formal offer to settle. The court reasoned that the Uniform Civil Procedure Rules do not exclude non-monetary terms from being included in a settlement offer, provided that they are not unreasonable or unconscionable. The court also found that the offer was more favourable to the plaintiff than the judgment ultimately awarded, and therefore, the court had discretion to order costs in favour of the plaintiff. The court exercised its discretion to award costs in favour of the plaintiff, taking into account the comparative favourability of the offer and the conduct of the parties during the proceedings.

The final orders of the court included an order that Smith pay Balnaves' costs of the proceedings up to the date of the offer, and an order that Balnaves pay Smith's costs of the proceedings from the date of the offer to the date of judgment. The court also made a declaration that the offer to settle made by Smith was a valid offer under Chapter 9, Part 5 of the Uniform Civil Procedure Rules.

Orders