Coleman v Bicknell (No. 2)

[2022] QDC 38

DISTRICT COURT OF QUEENSLAND

CITATION:	Coleman v Bicknell & Ors (No. 2) [2022] QDC 38
PARTIES:	RUSSELL GRAHAM COLEMAN
(Plaintiff and First Defendant by counterclaim)
v NATALIE EILEEN BICKNELL
(First Defendant)
DAVID JOHN BICKNELL
(Second Defendant)
ADAM JOHN COLEMAN
(Second Defendant by counterclaim)
FILE NO:	1311/2016
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING	Brisbane
COURT:
DELIVERED ON:	4 March 2022
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Jarro DCJ

ORDER:	1.	The defendants pay the plaintiff’s costs of and
incidental to the claim and counterclaim from 25 August 2021, including the costs of and incidental to the application for costs.
2.	The defendant pay the second defendant by
counterclaim’s costs of and incidental to the claim
and counterclaim from 25 August 2021, including the costs of and incidental to the application for costs.

CATCHWORDS:	PROCEDURE – COSTS – POWERS OF THE COURT -
where the plaintiff and the second defendant seek indemnity
costs of the claim and counterclaim – where plaintiff is entitled to costs – where the defendants seek indemnity cost for late
disclosure
LEGISLATION:	Uniform Civil Procedure Rules 1999 (Qld), r 5, r 361
CASES:
COUNSEL:	P W Hackett (Plaintiff)
R M De Luchi (Defendants)
SOLICITORS:	Colwell Wright Solicitors (Plaintiff) Robinson Locke Litigation Lawyers (Defendants)

1. By written reasons delivered 3 December 2021, I ordered the claim brought by Mr Coleman be dismissed and the counterclaim brought by Mr and Mrs Bicknell against Mr Coleman and his son (Mr Coleman Jnr) be dismissed.[1] I ordered that subject to any contrary submissions from the parties, there would be no order as to costs.[2]

   [1] [2021] QDC 301.

   [2] At [56].

2. Contrary submissions have been received from each of the parties.

3. The plaintiff and the second defendant by counterclaim (being the Colemans) seek an order that their costs of the claim and counterclaim from 25 August 2021 be paid on the indemnity basis, or alternatively the standard basis. They do so because they submit the Bicknells unreasonably and imprudently failed to accept an offer made on 25 August

   2021 marked “without prejudice save as to costs” and expressed to be “in accordance

   with the principles in Calderbank v Calderbank”. The Bicknells oppose the application

   and instead seek an order for costs incurred by them for what they say is due to Mr

   Coleman Snr’s late disclosure of wind chime footage pertaining to his claim.

Should the Colemans be entitled to costs?

1. The trial of this matter occurred over three days commencing 1 September 2021, with a further hearing for submissions on 17 September 2021. Shortly prior to the commencement of the trial, namely on 25 August 2021, the Colemans offered to pay the Bicknells as costs, $1.00 in respect of the claim and $1.00 in respect of the counterclaim. Had that offer been accepted, the Bicknells would have fared more favourably given the result achieved after a three day trial because they would have received $2.00, instead of nothing. Clearly, they would have not been required to engage…