Bankier v Hap2 Pty Ltd (No 3)

Case [2019] QSC 186

SUPREME COURT OF QUEENSLAND

CITATION:

Bankier v HAP2 Pty Ltd (No 3) [2019] QSC 186

PARTIES:

MICHELLE ANN BANKIER

(plaintiff)

v
HAP2 PTY LTD
ACN 005 806 744

(defendant)

FILE NO:

BS No 2715 of 2016

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

Martin J

ORDER:

The defendant is to pay the plaintiff’s costs of the action assessed on the indemnity basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – where the plaintiff made an offer to settle and the defendant rejected that offer – where the plaintiff’s offer was bettered in the judgment – where the defendant asserts that, after the time for accepting the offer had expired, the plaintiff’s statement of claim was amended in significant ways – where the defendant contends that the appropriate order is therefore that costs be assessed on the standard basis – whether costs ought to be calculated on the indemnity basis

Uniform Civil Procedure Rules 1999, r 360

Castro v Hillery [2003] 1 Qd R 651, cited

Federal Commissioner of Taxation v Moodie (2014) FLR 453, cited

Forge v Rewers (No 2) [2017] ACTSC 273, cited

Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391, cited

Shaw v Jarldorn (1999) 76 SASR 28, cited

COUNSEL:

B Hall for the plaintiff

S Eggins for the defendant

SOLICITORS:

Shine Lawyers for the plaintiff

Moray & Agnew Lawyers for the defendant

  1. On 25 July 2019 I gave judgment for the plaintiff in the sum of $719,434.00 with interest.[1]

  2. The plaintiff seeks an order that the defendant pay her costs on the indemnity basis. The defendant resists assessment on that basis.

    The offer

  3. On 18 November 2016 the plaintiff made an offer to settle the action pursuant to Chapter 9 Part 5 of the Uniform Civil Procedure Rules 1999 (UCPR). The offer was that the defendant pay the plaintiff $600,000 and her costs of the proceeding assessed on the standard basis.

  4. On 21 November 2016 the defendant rejected that offer and offered to settle on the basis that the plaintiff pay 50% of the defendant’s assessed costs to that date.

    The rule

  5. Rule 360 of the UCPR relevantly provides:

    “(1) If—

    (a)     the plaintiff makes an offer that is not accepted by the defendant and the plaintiff obtains an order no less favourable than the offer; and

    (b)     the court is satisfied that the plaintiff was at all material times willing and able to carry out what was proposed in the offer;

    the court must order the defendant to pay the plaintiff’s costs calculated on the indemnity basis unless the defendant shows another order for costs is appropriate in the circumstances.”

  6. In the ordinary course, given that the offer was bettered, an order for indemnity costs would follow.

    Is another order appropriate…

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AGLC
Bankier v HAP2 Pty Ltd (No 3) [2019] QSC 186
Case
[2019] QSC 186
Decision Date

CaseChat Overview and Summary

In the case of Bankier v Hap2 Pty Ltd (No 3), the plaintiff, Bankier, pursued legal action against the defendant, Hap2 Pty Ltd, before a relevant state court. The dispute centered around an offer made by Bankier to settle the matter, which Hap2 rejected. Subsequently, the court found in favor of Bankier, determining that the settlement offer was more favorable than the final judgment. Hap2 argued that the costs should be assessed on the standard basis, claiming that the plaintiff had significantly amended the statement of claim after the offer had lapsed. This argument was predicated on the assertion that the amendments rendered the original offer irrelevant.

The court was tasked with determining whether the costs should be calculated on the indemnity basis, as requested by Bankier, or on the standard basis, as Hap2 contended. The primary legal issue was whether the amendments to the statement of claim justified altering the basis on which costs were to be assessed. The court needed to weigh the impact of the amendments on the validity of the original settlement offer and the implications for the costs order.

In reaching its decision, the court found that Hap2 had not sufficiently demonstrated that the amendments to the statement of claim were substantial enough to invalidate the original settlement offer or to warrant a departure from the indemnity costs order. The court held that the amendments did not undermine the fairness or relevance of the initial settlement offer. Consequently, the court ruled that the costs should indeed be assessed on the indemnity basis, as Bankier had requested. The defendant was ordered to pay the plaintiff's costs of the action, calculated on the indemnity basis.

The final order of the court was that Hap2 Pty Ltd is to pay the costs of the plaintiff, Bankier, assessed on the indemnity basis. This decision underscores the importance of the integrity of settlement offers in determining the appropriate basis for costs assessment in civil proceedings.

Orders

Orders of the court

The defendant is to pay the plaintiff’s costs of the action assessed on the indemnity basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The defendant has not demonstrated that another order for costs is appropriate in the circumstances.Conclusion The defendant is to pay the plaintiff’s costs of the action assessed on the indemnity basis.

Ratio Decidendi

Legal Principle Established

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