Chandler v Silwood - [2016] QSC 120

SUPREME COURT OF QUEENSLAND

CITATION:

Chandler v Silwood [2016] QSC 120

PARTIES:

KAYLEEN GAYLE CHANDLER

(plaintiff)

v
CLIVE FRANCIS SILWOOD

(defendant)

FILE NO/S:

SC No 12010 of 2013

DIVISION:

Trial Division

PROCEEDING:

Trial

DELIVERED ON:

2 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Holmes CJ

ORDERS:

The defendant is to pay the plaintiff’s costs of the proceeding on the standard basis up to the expiration of the formal offer to settle on 25 June 2015, as agreed or assessed, on the District Court scale and thereafter is to pay the plaintiff’s costs of the proceeding on an indemnity basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – where the plaintiff made a series of offers which were not accepted by the defendant – where the plaintiff obtained an order more favourable than the offers made – whether indemnity costs should be awarded

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where proceedings were brought in the Supreme Court – where the relief granted could have been given by the District Court – whether the plaintiff’s costs should be assessed on the District or Supreme Court scale

Personal Injuries Proceedings Act 2002 (Qld), s 39
Uniform Civil Procedure Rules 1999 (Qld), r 360, r 697

Calderbank v Calderbank [1976] Fam 93, cited
Colgate-Palmolive Co v Cusson Pty Ltd (1993) 46 FCR 225, cited

COUNSEL:

K C Fleming QC, with G Hampson, for the plaintiff

K S Howe for the defendant

SOLICITORS:

O’Donnell Legal for the plaintiff

Barry Nilsson for the defendant

HOLMES CJ: On 27 April 2016, I gave judgment in this proceeding in the agreed amount of $650,000. The parties were given leave to make written submissions as to costs. It is not disputed that a costs order should be made in favour of the plaintiff; what is in dispute is whether costs should be awarded on the standard or indemnity basis and whether the District Court scale should be applied.
The plaintiff made a series of offers which is relevant in deciding on which basis costs should be awarded. On 14 October 2013, the plaintiff made a mandatory final offer, pursuant to s 39 of the Personal Injuries Proceedings Act 2002, in the sum of $500,000 plus costs. On 22 May 2015, in a without prejudice letter, she made a written offer in the sum of $500,000 plus costs on the Supreme Court scale. Finally, on 25 June 2015, the plaintiff made a written offer expressed to be made pursuant to Chapter 9 Part 5 of the Uniform Civil Procedure Rules 1999, in the amount of $400,000 plus costs.
The first and second offers are akin to Calderbank[1] offers, and the live question in respect of them is whether the defendant made what has been termed “an imprudent refusal” of them[2]. The offer made under the Uniform Civil Procedure Rules brings into play Rule 360; the defendant must be…

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 Chandler v Silwood

Details

AGLC: Chandler v Silwood [2016] QSC 120
Case: [2016] QSC 120
Decision Date: 2 June 2016

CaseChat Overview and Summary

The case of Chandler v Silwood involved a dispute where the plaintiff sought indemnity costs after making offers that were not accepted by the defendant. The plaintiff ultimately obtained an order that was more favourable than the offers made. The court had to determine whether indemnity costs should be awarded under these circumstances. Additionally, the court needed to decide whether the plaintiff’s costs should be assessed on the District or Supreme Court scale, considering that the proceedings were initiated in the Supreme Court but the relief granted could have been provided by the District Court.

The court examined the principle that indemnity costs may be awarded when the plaintiff has made offers which the defendant rejected, and the final order is more favourable than the plaintiff’s offers. It considered whether the plaintiff's final outcome justified the award of indemnity costs. The court also scrutinised the procedural history and the nature of the relief granted to determine the appropriate scale for assessing costs, given the original jurisdiction of the proceedings and the possible alternative forum.

In deciding the matter, the court concluded that the plaintiff’s final order was indeed more favourable than the offers made, warranting an award of indemnity costs from the point when the formal offer expired on 25 June 2015. The court also determined that the costs should be assessed on the District Court scale, as the relief granted could have been given by the District Court. Therefore, the defendant was ordered to pay the plaintiff’s costs on the standard basis up to 25 June 2015, as agreed or assessed, on the District Court scale. From that date onwards, the defendant was to pay the plaintiff’s costs on an indemnity basis.

Orders

Orders of the court

The defendant is to pay the plaintiff’s costs of the proceeding on the standard basis up to the expiration of the formal offer to settle on 25 June 2015, as agreed or assessed, on the District Court scale and thereafter is to pay the plaintiff’s costs of the proceeding on an indemnity 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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CITATION:	Chandler v Silwood [2016] QSC 120
PARTIES:	KAYLEEN GAYLE CHANDLER (plaintiff) v CLIVE FRANCIS SILWOOD (defendant)
FILE NO/S:	SC No 12010 of 2013
DIVISION:	Trial Division
PROCEEDING:	Trial
DELIVERED ON:	2 June 2016
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGE:	Holmes CJ
ORDERS:	The defendant is to pay the plaintiff’s costs of the proceeding on the standard basis up to the expiration of the formal offer to settle on 25 June 2015, as agreed or assessed, on the District Court scale and thereafter is to pay the plaintiff’s costs of the proceeding on an indemnity basis.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – where the plaintiff made a series of offers which were not accepted by the defendant – where the plaintiff obtained an order more favourable than the offers made – whether indemnity costs should be awarded PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where proceedings were brought in the Supreme Court – where the relief granted could have been given by the District Court – whether the plaintiff’s costs should be assessed on the District or Supreme Court scale Personal Injuries Proceedings Act 2002 (Qld), s 39 Uniform Civil Procedure Rules 1999 (Qld), r 360, r 697 Calderbank v Calderbank [1976] Fam 93, cited Colgate-Palmolive Co v Cusson Pty Ltd (1993) 46 FCR 225, cited
COUNSEL:	K C Fleming QC, with G Hampson, for the plaintiff K S Howe for the defendant
SOLICITORS:	O’Donnell Legal for the plaintiff Barry Nilsson for the defendant