Buchan v Young (No 2) - [2020] QDC 248

DISTRICT COURT OF QUEENSLAND

CITATION:

Buchan v Young & Anor (No 2) [2020] QDC 248

PARTIES:

PAULINE ANN BUCHAN

(plaintiff)

v

GARY PAUL YOUNG

(first defendant)

and

KIM LOUISE YOUNG

(second defendant)

FILE NO:

D 24/17

DIVISION:

Civil

PROCEEDING:

Application for costs following trial

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

29 September 2020

DELIVERED AT:

Maroochydore

HEARING DATE:

Heard on written submissions, last received on 18 September 2020

JUDGE:
Long SC DCJ

ORDER:

The defendants are to pay 80% of the plaintiff’s costs of the proceeding, as agreed or to be assessed on the standard basis.

CATCHWORDS:

COSTS – CALDERBANK OFFERS – MIXED SUCCESS –Where the general rule is that costs follow the event – Where no offers were made under UCPR 684 – Whether correspondence constituted a “Calderbank offer” – Where the plaintiff was successful on two of her three claims against the defendants – Whether recovery of costs on other than the usual and standard basis of assessment is warranted – Apportionment of costs to reflect mixed success

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld), rr 498, 681, 684, 703

CASES:

Australand Corporation (Qld) Pty Ltd v Johnson & Ors [2007] QSC 128

Australian Institute for Progress Ltd v Electoral Commission for Queensland [2020] QSC 174

Bulsey v State of Queensland [2016] QCA 158

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225

InterchaseCorporation Ltd (in Liq)v Grosvenor Hill (Qld) Pty Ltd (No 3) [2003] 1 Qd R 26

J & D Rigging Pty Ltd v Agripower Australia Ltd (No 2) [2014] QCA 23

Kitching v Commissioner of Police [2010] QSC 443

Neumann Contractors P/L v Peet Beachton Syndicate Limited (No 2) [2009] QSC 383

Palmer v Parbery & Ors [2018] QCA 268

Stewart v Atco Controls Pty Ltd (No 2) (2014) 252 CLR 331

Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111

COUNSEL:

J P Mould for the plaintiff

D C Fahl for the defendants

SOLICITORS:

Greenhalgh Pickard for the plaintiff

Andrew Fogg Lawyers for the defendants

On 3 September 2020, the plaintiff was awarded judgment on two of her three claims made in that proceeding. The defendants were respectively ordered to pay her the sums of $7,757.73 and $209,475.84, each sum being inclusive of interest. Other orders were made, including the declaration of a constructive trust in respect of real property and directions were made for written submissions as to costs.
The first sum relates to a claim in contract or debt, for what was referred to as the “Initial Expenses Claim”. It related to expenditure by the plaintiff in respect of a property, legally owned by the second defendant in the United Kingdom, and was conceded by the defendants on the second day of the trial.[1] The claim upon which the plaintiff was unsuccessful related to subsequent expenditure by her in respect of the same property. It was a claim for restitution, having regard to a contention of unjust enrichment, and was referred to as…

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 Buchan v Young (No 2)

Details

AGLC: Buchan v Young (No 2) [2020] QDC 248
Case: [2020] QDC 248
Decision Date: 29 September 2020

CaseChat Overview and Summary

In the matter of Buchan v Young (No 2), the plaintiff, Buchan, sought costs following her successful claims against the defendants, Young. The primary dispute centered around whether correspondence between the parties constituted a Calderbank offer and whether costs should be apportioned given the mixed success of the plaintiff's claims. The case was heard in the Queensland Supreme Court.

The central legal issues involved determining if the correspondence between the parties could be considered a Calderbank offer, and if so, whether it was reasonable for the defendants to have rejected it. Additionally, the court had to decide if the plaintiff's mixed success in her claims warranted a deviation from the usual basis for cost recovery. The court also needed to ascertain the appropriate apportionment of costs in light of the mixed outcome.

The court concluded that the correspondence did not constitute a formal Calderbank offer as no mention of indemnity costs was made. The offer required significant funds and security, which was unreasonable given the defendants' limited financial means. The plaintiff's unsuccessful claim for refurbishment costs was deemed separable and dominant enough to justify a cost apportionment. The court found it fair to award 80% of the costs to the plaintiff, reflecting the mixed success of her claims.

The final orders were that the defendants pay 80% of the plaintiff's costs of the proceedings, as agreed or to be assessed on the standard basis. This decision ensures that the plaintiff recovers a significant portion of her costs, adjusted to reflect the mixed outcome of her claims.

Orders

Orders of the court

The defendants are to pay 80% of the plaintiff’s costs of the proceeding, as agreed or 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

As to any question of unreasonableness in respect of failure to accept the plaintiff’s, informal offer, the following factors are contended to be particularly apposite:“(a)The offer required both the payment of significant funds in a short timeframe and the provision of security by the defendant, when (from the evidence that was before the Court) it was well within the knowledge of the plaintiff that the defendants had limited financial means and had secured the balance of purchase funds for the Kentish Road property by way of mortgage;(b)The offer constituted, at best, a marginal compromise as against the plaintiff’s claim. It could by no means be characterised as a material or significant offer by the plaintiff to acknowledge any risk to her, or her role in the dispute, which emerged from family interactions;(c)While expressing the intention that the offer will be relied upon on the question of cost, no mention of seeking indemnity costs was made.”Conclusions Similarly to the position noted in The Australian Institute for Progress Limited v The Electoral Commission of Queensland & Ors (No 2),[9] no reference is made in the submissions of the parties to UCPR 684, which was there noted as providing an exception to the general rule and providing an express power to order costs in relation to a particular question in, or a particular part of a proceeding. However, as also there noted:“The general rule remains and necessarily the circumstances which would engage r 684 are exceptional.”It is also convenient to note the following further observations in that decision:“[15]Finally as to governing principles, the fact that the word “event” in r 681 is not confined to the final result of the proceeding, but may refer to the outcome of a separate issue where there are two or more issues in the proceeding, should not be thought to encourage a proliferation of issue identification. Instead, it recognises the injustice that may be produced if the word “event” was confined simply to the result or outcome of the proceeding. Moreover, the fact that a party has been unsuccessful on a particular issue, but successful on others, does not necessarily justify the awarding of costs on an issues basis. Courts may on occasions apportion costs in a way which fairly reflects both the outcome, and the costs associated with, the determination of different questions. However, ordinarily the fact that a successful party fails on a particular issue does not mean that it should be deprived of some of its costs. Also, a court will generally only deprive the successful party of the costs relating to an issue on which it was unsuccessful where that issue was clearly dominant or separable.” (citations omitted)[9][2020] QSC 174 at [14]. Here and notwithstanding what has been noted as some sense of interrelationship with the arrangements leading to the Kentish Road Claim and upon which the plaintiff succeeded, the plaintiff’s unsuccessful Refurbishment Costs Claim was clearly separable as to the legal principles upon which it was based. And there was also a substantial amount of the evidential detail which was separable as only being relevant to the unsuccessful claim. It should also be concluded that there was a substantial proportion of the proceedings, in its various forms, which were directed at the separable aspects of this unsuccessful claim and such that there should be some deprivation of recovery by the plaintiff of her costs on the issue on which she failed. Neither is the level of significance of that unsuccessful claim to be simply assessed by reference to the relative quantum of the claim. A fair apportionment in the circumstances is that the plaintiff recover 80% of her costs of the proceedings. As there is no application pursuant to UCPR 698 or otherwise, that will include any reserved costs.

Ratio Decidendi

Legal Principle Established

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CITATION:	Buchan v Young & Anor (No 2) [2020] QDC 248
PARTIES:	PAULINE ANN BUCHAN (plaintiff) v GARY PAUL YOUNG (first defendant) and KIM LOUISE YOUNG (second defendant)
FILE NO:	D 24/17
DIVISION:	Civil
PROCEEDING:	Application for costs following trial
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	29 September 2020
DELIVERED AT:	Maroochydore
HEARING DATE:	Heard on written submissions, last received on 18 September 2020
JUDGE:	Long SC DCJ
ORDER:	The defendants are to pay 80% of the plaintiff’s costs of the proceeding, as agreed or to be assessed on the standard basis.
CATCHWORDS:	COSTS – CALDERBANK OFFERS – MIXED SUCCESS –Where the general rule is that costs follow the event – Where no offers were made under UCPR 684 – Whether correspondence constituted a “Calderbank offer” – Where the plaintiff was successful on two of her three claims against the defendants – Whether recovery of costs on other than the usual and standard basis of assessment is warranted – Apportionment of costs to reflect mixed success
LEGISLATION:	Uniform Civil Procedure Rules 1999 (Qld), rr 498, 681, 684, 703
CASES:	Australand Corporation (Qld) Pty Ltd v Johnson & Ors [2007] QSC 128 Australian Institute for Progress Ltd v Electoral Commission for Queensland [2020] QSC 174 Bulsey v State of Queensland [2016] QCA 158 Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 InterchaseCorporation Ltd (in Liq)v Grosvenor Hill (Qld) Pty Ltd (No 3) [2003] 1 Qd R 26 J & D Rigging Pty Ltd v Agripower Australia Ltd (No 2) [2014] QCA 23 Kitching v Commissioner of Police [2010] QSC 443 Neumann Contractors P/L v Peet Beachton Syndicate Limited (No 2) [2009] QSC 383 Palmer v Parbery & Ors [2018] QCA 268 Stewart v Atco Controls Pty Ltd (No 2) (2014) 252 CLR 331 Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111
COUNSEL:	J P Mould for the plaintiff D C Fahl for the defendants
SOLICITORS:	Greenhalgh Pickard for the plaintiff Andrew Fogg Lawyers for the defendants