Bert v Red 5 Limited

Case [2017] QSC 8

SUPREME COURT OF QUEENSLAND

CITATION:

Bert & Ors v Red 5 Limited & Anor [2017] QSC 8

PARTIES:

JEAN-CLAUDE BERT

(first plaintiff)
GABRIELLE BERT
(second plaintiff)
ISABELLE BERT
(third plaintiff)
CAROLINE BERT
(fourth plaintiff)

v
RED 5 LIMITED

(first defendant)
COLIN JACKSON

(second defendant)

FILE NO:

No 1467 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application for costs

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

10 February 2017

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

Applegarth J

ORDER:

1.    The first plaintiff pay the defendants’ cost of and incidental to the proceeding, to be assessed on the standard basis up to and including 25 December 2015, and thereafter on the indemnity basis

2.    The second plaintiff pay ten per cent of the defendants’ costs of and incidental to the proceeding which were incurred on or after 26 May 2015, to be assessed on the standard basis

3.    The third plaintiff pay five per cent of the defendants’ costs of and incidental to the proceeding which were incurred on or after 26 May 2015, to be assessed on the standard basis

4.    The fourth plaintiff pay five per cent of the defendants’ costs of and incidental to the proceeding which were incurred on or after 26 February 2016, to be assessed on the standard basis

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY – where the plaintiffs’ claim was dismissed – where the second, third and fourth plaintiffs were joined later in the proceeding – whether an order for costs should be made against the plaintiffs on a joint and several basis

PROCEDURE – COSTS DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where the plaintiffs failed to accept the defendants’ formal offer to settle – where the plaintiffs made allegations of dishonesty against the second defendant – whether the plaintiffs’ rejection of the defendants’ offer was unreasonable - whether the plaintiffs’ conduct warrant costs being awarded on an indemnity basis

Uniform Civil Procedure Rules 1999 (Qld) rr 361, 681, 703

du Boulay v Worrell [2009] QCA 63, cited
J & D Rigging Pty Ltd v Agripower Australia Ltd [2014] QCA 23, cited
Chaina v Alvar Homes Pty Ltd [2008] NSWCA 353, cited
Cosgrove v Johns [2000] QCA 157, cited
Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VLR 435, cited
John S Hayes & Associates Pty Ltd v Kimberly-Clarke Australia Pty Ltd (1994) 52 FCR 201, cited
Legal Services Commissioner v Bone [2014] QCA 179, cited
Stewart v Atco Controls Pty Ltd (No 2) (2014) 252 CLR 331, cited

Surfstone Pty Ltd v Morgan Consulting Engineers Pty Ltd [2015] QSC 322, cited

Thiess Pty Ltd v FLSMIDTH Minerals Pty Ltd (No 2) [2010] QSC 120, cited
Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213, cited

COUNSEL:

The plaintiffs appeared on…

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Bert v Red 5 Limited [2017] QSC 8
Case
[2017] QSC 8
Decision Date

CaseChat Overview and Summary

In the case of Bert v Red 5 Limited, the plaintiffs sought compensation from the defendants for various claims including misrepresentation and breach of contract. The case was heard in a court in Australia. The defendants moved for costs under the general rule, arguing that the plaintiffs' claims were dismissed and, therefore, they should bear the costs of the entire proceeding. The defendants also sought an indemnity costs order, asserting that the plaintiffs unreasonably rejected a settlement offer and made unfounded allegations of dishonesty.

The court considered whether the plaintiffs' conduct warranted an order for costs on an indemnity basis. The court found that the plaintiffs' decision to reject the defendants' settlement offer was unreasonable, given the strength of the defendants' position and the lack of significant changes in the circumstances since the offer was made. Additionally, the court determined that the plaintiffs' allegations of dishonesty were unfounded, further supporting the argument for indemnity costs. The court also examined the timing of when each plaintiff was joined to the proceeding, impacting the proportion of costs each was responsible for.

As a result, the court ruled that the first plaintiff should pay the defendants' costs up until a certain date on the standard basis and thereafter on the indemnity basis. The second, third, and fourth plaintiffs were ordered to pay a percentage of the defendants' costs incurred after specific dates on the standard basis. This decision reflects the court's consideration of the plaintiffs' conduct and the impact of their actions on the progression and outcome of the case.

Orders

Orders of the court

1. The first plaintiff pay the defendants’ cost of and incidental to the proceeding, to be assessed on the standard basis up to and including 25 December 2015, and thereafter on the indemnity basis

2. The second plaintiff pay ten per cent of the defendants’ costs of and incidental to the proceeding which were incurred on or after 26 May 2015, to be assessed on the standard basis

3. The third plaintiff pay five per cent of the defendants’ costs of and incidental to the proceeding which were incurred on or after 26 May 2015, to be assessed on the standard basis

4. The fourth plaintiff pay five per cent of the defendants’ costs of and incidental to the proceeding which were incurred on or after 26 February 2016, to be assessed on the standard basis

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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