Cabato v Paltridge (No 2)

Case [2025] QDC 82

DISTRICT COURT OF QUEENSLAND

CITATION:

Cabato v Paltridge and Another (No 2) [2025] QDC 82

PARTIES:

DARWIN CABATO
(Plaintiff)

v
GREGORY STUART PALTRIDGE

(First Defendant)

And

ALLIANZ AUSTRALIA INSURANCE LIMITED
(Second Defendant)

FILE NO:

DC 83 of 2021

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

20 June 2025

DELIVERED AT:

HEARING DATE:

Southport

Written submissions

JUDGE:

Holliday KC DCJ

ORDER:

The second defendant is to pay the plaintiff’s costs of the proceeding on the standard basis assessed on the Magistrate’s Court scale not including any costs awarded by the Order of 23 October 2024.

CATCHWORDS:

PROCEDURE – COSTS – where the plaintiff was successful in primary judgment – where the plaintiff’s mandatory final offer was less than the judgment sum – where judgment sum was more than upper offer limit – where plaintiff seeks costs on an indemnity basis – whether claim falls within District Court or Magistrates Court jurisdiction – whether the plaintiff ought to recover costs associated with the left sided symptoms and prior to the adjournment of the trial

LEGISLATION: 

Motor Accident Insurance Act 1994 (Qld) ss 51C(10), 55F(3)(b)(ii)

Uniform Civil Procedure Rules 1999 (Qld) rr 360, 684, 697(1)&(2)

CASES:

Pollock v Thiess Pty Ltd & Ors (No 3) [2014] QSC 121
Hughes v Gordon [2007] QSC 78
Kerle v BM Alliance Coal Operations Pty Ltd & Ors (No 2) [2017] QSC 7
Canaipa Developments Pty Ltd v TLC Jones Pty Ltd (No 2) [2021] QSC 331
Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39
Built Qld Pty Ltd v Pro-Invest Australian Hospitality Opportunity (ST) Pty Ltd (No 3) [2022] QSC 62
Morrison v Hudson & Anor [2006] QCA 170
Castro v Hillery (2003) 1 QD R 651
Bulsey v State of Queensland [2016] QCA 158
Forostenko v Springfree Trampoline Australia Pty Ltd (No 2) [2024] QSC 126
Grieve v Gomez [2017] QDC 298
Sutton v Hunter (No 2) [2021] QSC 268
Perfect v McDonald & Anor [2012] QSC 11
Rook v Crofts(No 2) [2018] QDC 238
Lawes v Nominal Defendant [2007] QSC 103

COUNSEL:

M Lazinski for the plaintiff

R Morton for the defendants

SOLICITORS:

Southern Gold Coast Lawyers for the plaintiff

McInnes Wilson Lawyers for the defendants

Introduction

  1. This is the decision with respect to costs consequent on the judgment in Cabato v Paltridge & Anor [2025] QDC 59.

  2. In that matter, I gave judgment in favour of the plaintiff against the second defendant in the sum of $73,663.91 (‘judgment sum’). The parties were directed to provide, and did provide, written submissions on costs including reply submissions.

  3. The parties have agreed that the Mandatory Final Offers (‘MFOs’) made were $40,000.00 by the plaintiff and $15,000.00 by the second defendant. Those offers were exchanged at the compulsory conference held on 18 February 2021. Proceedings were commenced on 12 March 2021.

  4. The upper offer limit at the relevant time was $71,730.00. Therefore, the judgment sum exceeds the plaintiff’s MFO as well…

Continue reading Cabato v Paltridge (No 2)

Sign in free to access the full text

Details
AGLC
Cabato v Paltridge (No 2) [2025] QDC 82
Case
[2025] QDC 82
Decision Date

CaseChat Overview and Summary

In the case of Cabato v Paltridge (No 2), the plaintiff, Mr. Cabato, sought costs from the second defendant following a successful judgment in his favour. The primary judgment awarded Mr. Cabato damages in the sum of $73,663.91. Both parties had made mandatory final offers (MFOs) prior to the trial, with Mr. Cabato offering $40,000.00 and the second defendant offering $15,000.00. These offers were exchanged during a compulsory conference. The proceedings were initiated on 12 March 2021, and the upper offer limit at the relevant time was $71,730.00. Consequently, the judgment sum exceeded both the plaintiff's MFO and the upper offer limit set by the Motor Accident Insurance Act 1994 (Qld). Mr. Cabato sought his costs on a standard basis up to the date the proceedings commenced and on an indemnity basis from that date onwards. The second defendant argued against the indemnity costs, contending that the costs should be assessed on the Magistrates' Court scale.

The court was tasked with determining whether the plaintiff's claim for indemnity costs was justified and if the matter should be assessed on the District Court scale due to its complexity. The plaintiff cited section 51C(10) of the MAIA, which mandates the court to consider MFOs when deciding on costs, and section 55F(3)(b)(ii), which requires an indemnity costs order if the matter had fallen at or below the upper offer limit. The plaintiff also argued that the starting point for costs should be indemnity and that it was for the second defendant to demonstrate why a different order would be appropriate. The plaintiff further argued that the length of the trial, the thoroughness of the judgment, the complexity of the evidentiary and medical issues, and the stark contrast in the parties' positions on critical issues warranted costs on the District Court scale.

The court found that the second defendant was to pay the plaintiff’s costs of the proceeding on the standard basis assessed on the Magistrate's Court scale, excluding the costs awarded by the Order of 23 October 2024. The court concluded that the indemnity costs were not applicable in this case, given the legislative framework and the specific circumstances of the proceedings. The court also ruled out the application of the District Court scale, considering that the case did not exhibit the unusual features or complexity that would warrant such an assessment.

ORDERS:
The second defendant is to pay the plaintiff’s costs of the proceeding on the standard basis assessed on the Magistrate’s Court scale not including any costs awarded by the Order of 23 October 2024.

Orders

Orders of the court

The second defendant is to pay the plaintiff’s costs of the proceeding on the standard basis assessed on the Magistrate’s Court scale not including any costs awarded by the Order of 23 October 2024.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In that matter, I gave judgment in favour of the plaintiff against the second defendant in the sum of $73,663.91 (‘judgment sum’). The parties were directed to provide, and did provide, written submissions on costs including reply submissions. The parties have agreed that the Mandatory Final Offers (‘MFOs’) made were $40,000.00 by the plaintiff and $15,000.00 by the second defendant. Those offers were exchanged at the compulsory conference held on 18 February 2021. Proceedings were commenced on 12 March 2021. The upper offer limit at the relevant time was $71,730.00. Therefore, the judgment sum exceeds the plaintiff’s MFO as well as the upper offer limit in the Motor Accident Insurance Act 1994 (Qld) (‘MAIA’). The outcome is that the second defendant is to pay the plaintiff’s costs of the proceeding on the standard basis assessed on the Magistrate’s Court scale excluding the costs awarded by the Order of 23 October 2024. The plaintiff seeks that the second defendant pay his costs on a standard basis up to the date on which the proceedings commenced; and on an indemnity basis on or after the date on which the proceedings commenced. The plaintiff referred to s 51C(10) of the MAIA and noted that the court is required to consider MFO’s in making a decision about costs. The plaintiff highlighted s 55F(3)(b)(ii) of the MAIA noting that an indemnity costs order for the proceeding would have been mandated if the matter had fallen at the upper offer limit or under with the costs during pre-proceeding limited to $3600.00. The plaintiff submits, relying on Pollock v Thiess Pty Ltd & Ors(No 3) [2014] QSC 121 at [39],[1] that the starting point is indemnity costs and it is for the second defendant to show why some other order is appropriate. The plaintiff further submits that this approach is consistent with the object of the MAIA and s 55F(3)(b)(ii) of the Act.[1] And Kerle v BM Alliance Coal Operations Pty Ltd & Ors (No 2) [2017] QSC 7. The plaintiff submits that there is nothing exceptional about further evidence being obtained after the compulsory conference and relies upon the decision of Hughes v Gordon [2007] QSC 78 at [16]. Further, the plaintiff contends that he was put to significant expense in having to prove his injuries and entitlement for damages due to the second defendant never resiling from its original position. The plaintiff submits that a party wishing to dispute the applicability of a MFO should not stand idle in light of the ability to make further offers and in the present case no further offers were made. The second defendant “doubled down on its pleaded position denying spinal and other injuries” despite their own expert diagnosing soft tissue injuries of the neck and back as early as 22 June 2020. The plaintiff submits, in the alternative, that costs should be awarded on the District Court scale as it is a case that involves some “unusual feature or complexity in the evidence or the assessment of damages” given the length of the trial; length and thoroughness of the judgment; complexity of evidentiary issues and medical issues; and the polarity of the parties’ position on many critical issues.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.