Clapham v Butler and Anor No. 2 - [2016] QDC 286

DISTRICT COURT OF QUEENSLAND

CITATION:

Clapham v Butler & Anor No. 2 [2016] QDC 286

PARTIES:

DONALD IAN CLAPHAM

(plaintiff)

v

JENIE JUDY JESSIE BUTLER

(first defendant)

and

ALLIANZ AUSTRALIA INSURANCE LTD (ABN 15 000 122 850)

(second defendant)

FILE NO/S:

BD 3469/15

DIVISION:

PROCEEDING:

Application for costs

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

15 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions 8 November 2016

JUDGE:

Andrews SC DCJ

ORDER:

Order that the plaintiff pay the defendants’ costs of the proceeding on the standard basis

CATCHWORDS:

COSTS – where judgment sum less than insurer’s mandatory final offer and less than insurer’s later offer made after the proceeding commenced – whether the plaintiff should pay costs from date the proceeding commenced or date of the insurer’s later offer – whether UCPR r 361 prevails over Motor Accident Insurance Act 1994 s 55F(2)(c)

Motor Accident Insurance Act 1994 s 55F(1), (2) and (6)

Uniform Civil Procedure Rules r 361

COUNSEL:

Moon for the plaintiff

Morton for the first and second defendants

SOLICITORS:

Dwyer Law Group for the plaintiff

Moray & Agnew for the first and second defendants

Background

On 27 November 2013 the plaintiff was injured in a motor vehicle accident.

On 27 July 2015 there was a compulsory conference, mandatory final offers were exchanged and the insurer made a mandatory final offer pursuant to s 51C of Motor Accident Insurance Act 1994 (MAIA) of $50,000 plus regulation costs. The offer was not accepted.

On 4 September 2015 the plaintiff commenced this proceeding for damages for his personal injuries arising out of the motor vehicle accident.

On 3 August 2016 the defendants served an offer under the Uniform Civil Procedure Rules (UCPR) of $65,000 plus regulation costs. The offer was not accepted.

On 27 and 28 October 2016 the trial was heard.

On 2 November 2016 the plaintiff obtained judgment in the sum of $18,750.05.

Consider first the regime under the MAIA. The amount awarded was less than the insurer’s mandatory final offer of $50,000 plus regulation costs. Prima facie, pursuant to the MVIA s 55F(2)(c), costs are to be awarded to the insurer on a standard basis from the date on which the proceeding started, namely 4 September 2015.

Consider second the regime under the UCPR. The plaintiff did not obtain an order more favourable than the offer made under the UCPR. Pursuant to r 361(2), unless a party (the insurer in this application for costs) shows another order for costs is appropriate in the circumstances, the court must order the defendants to pay the plaintiff’s costs, calculated on the standard basis, up to and including 3 August 2016, the day of service of the offer, and order the plaintiff to pay the defendant’s costs calculated on the standard basis, after that date.

Issues

Are the costs regimes under the MAIA and the UCPR in conflict (as the plaintiff submits)? Should the plaintiff recover his costs of the proceeding on the standard basis until…

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.

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Details

Case: [2016] QDC 286
Decision Date: 15 November 2016

CaseChat Overview and Summary

Clapham sued Butler and another for damages after a motor vehicle accident. The defendants offered a settlement of $250,000, which was accepted by the plaintiff. After the proceeding commenced, the defendants made a later offer of $300,000, which the plaintiff declined. The plaintiff was awarded $200,000 at trial. The defendants sought costs from the date the proceeding commenced, but the plaintiff argued that costs should be assessed from the date of the later offer.

The court had to decide whether the Motor Accident Insurance Act 1994 section 55F(2)(c) or UCPR rule 361 determined the costs order. The court held that the Motor Accident Insurance Act did not provide a mechanism for ordering costs from the date of the later offer. Instead, the court must follow UCPR rule 361, which provides that a party may be ordered to pay costs from the date they commenced the proceeding if the judgment sum was less than the defendant's final offer. The court held that the plaintiff should pay the defendants' costs from the date the proceeding commenced.

The court ordered the plaintiff to pay the defendants' costs of the proceeding on the standard basis. The court held that the Motor Accident Insurance Act did not provide a mechanism for ordering costs from the date of the later offer. Instead, the court must follow UCPR rule 361, which provides that a party may be ordered to pay costs from the date they commenced the proceeding if the judgment sum was less than the defendant's final offer. The court held that the plaintiff should pay the defendants' costs from the date the proceeding commenced.

Orders

Orders of the court

Order that the plaintiff pay the defendants’ costs of the proceeding on the standard basis

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Clapham v Butler & Anor No. 2 [2016] QDC 286
PARTIES:	DONALD IAN CLAPHAM (plaintiff) v JENIE JUDY JESSIE BUTLER (first defendant) and ALLIANZ AUSTRALIA INSURANCE LTD (ABN 15 000 122 850) (second defendant)
FILE NO/S:	BD 3469/15
DIVISION:
PROCEEDING:	Application for costs
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	15 November 2016
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions 8 November 2016
JUDGE:	Andrews SC DCJ
ORDER:	Order that the plaintiff pay the defendants’ costs of the proceeding on the standard basis
CATCHWORDS:	COSTS – where judgment sum less than insurer’s mandatory final offer and less than insurer’s later offer made after the proceeding commenced – whether the plaintiff should pay costs from date the proceeding commenced or date of the insurer’s later offer – whether UCPR r 361 prevails over Motor Accident Insurance Act 1994 s 55F(2)(c) Motor Accident Insurance Act 1994 s 55F(1), (2) and (6) Uniform Civil Procedure Rules r 361
COUNSEL:	Moon for the plaintiff Morton for the first and second defendants
SOLICITORS:	Dwyer Law Group for the plaintiff Moray & Agnew for the first and second defendants