Dale v Nichols Constructions Pty Ltd - [2004] QDC 26

DISTRICT COURT OF QUEENSLAND

CITATION:

Dale v Nichols Constructions Pty Ltd [2004] QDC 026

PARTIES:

WENDY DALE

First Applicant

ROBERT NORMAN DALE

Second Applicant

v

NICHOLS CONSTRUCTIONS PTY LTD (ACN 010 763 505)

Respondent

and

BROADBENT RADICH SAMPSON LAWYERS

Third Party

FILE NO/S:

D868 of 2000

DIVISION:

PROCEEDING:

Originating application

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

4 March 2004

DELIVERED AT:

Brisbane

HEARING DATE:

24 February 2004

JUDGE:

McGill DCJ

ORDER:

As to costs, order that:

(a)respondent pay applicant’s costs of and incidental to the proceeding to the opening of the court on 3 October 2002, to be assessed.

(b)applicant pay respondent’s costs incurred after the opening of the court on 3 October 2002, to be assessed on an indemnity basis.

(c)third party pay respondent’s costs of and incidental to the third party proceeding to be assessed.

(d)third party indemnify respondent in respect of one-half of the net amount payable by the respondent to the applicant under the costs order, after setting off the amount payable by the applicant to the respondent.

Direct that the costs to be allowed for counsel be more than the costs under Part 2 of Schedule 2.

Certify that the registrar may allow a higher amount under item 27 that the registrar considers proper in the circumstances.

CATCHWORDS:

PRACTICE – Costs – offer to settle – whether effective – whether other order appropriate – applicant with limited success – whether assessment above scale justified.

PRACTICE – Offers to settle – offer to two other parties conditional on both accepting – rules apply – whether other order appropriate.

Uniform Civil Procedure Rules rr 360, 361.

COUNSEL:

M E Eliadis for the first applicant
E J Morzone for the respondent
D G Clothier for the third party

SOLICITORS:

Clayton Utz for the first applicant
Hickey Lawyers for the respondent
Bartley & Associates for the third party

This is an application for relief under the Consumer Credit Code. The application was filed in the District Court at Southport on 13 October 2000. It came on for hearing before me at Southport on 10 September 2002, and after four days the hearing was adjourned to 3 October 2002 in Brisbane. On that day and the following day I heard the rest of the evidence, and some oral argument, which was supplemented by written submissions. I circulated reasons which I prepared on 12 December 2003;[1] one of the matters which had to be decided was the amount payable, in respect of each of two loan contracts, to discharge the loan on a particular date, either the date of judgment or a later date, and it was necessary for me to have information about the payments which had been made since judgment was reserved in order to calculate that figure. That impacted on the amount payable by the third party to the respondent, so judgment on the third party proceedings could also not be finalised without further submissions.
[1][2003] QDC 453.

The matter was listed for further…

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: [2004] QDC 26
Decision Date: 4 March 2004

CaseChat Overview and Summary

In the matter of Dale v Nichols Constructions Pty Ltd, the dispute revolved around the determination of costs following an unsuccessful application to have an offer to settle deemed effective. The case was heard in the Supreme Court of New South Wales. The applicant, Dale, sought to have the costs of the proceeding awarded in his favour, arguing that an offer to settle made to two other parties was conditional on both accepting and should therefore be considered effective. The respondent, Nichols Constructions, contended that the offer was not effective and that other orders for costs were more appropriate.

The central legal issues before the court were whether the offer to settle was effective and, if not, what other orders for costs were appropriate given the limited success of the applicant. The court had to consider whether the rules governing offers to settle applied to the situation where an offer was conditional on multiple parties accepting it. Additionally, the court needed to determine whether an assessment of costs above the scale was justified, given the applicant's limited success.

The court found that the offer to settle was not effective because it was conditional on both of the other parties accepting, which did not meet the criteria for an effective offer under the relevant rules. The court also considered that the applicant had only partially succeeded in the proceeding, thus warranting a different order for costs. The court ordered that the respondent pay the applicant's costs up to a certain date, while the applicant would pay the respondent's costs incurred after that date on an indemnity basis. Furthermore, a third party was directed to pay the respondent's costs of a related proceeding and to indemnify the respondent for half of the net amount payable under the costs order. The court also allowed for counsel costs to exceed the scale, with specific instructions regarding the assessment of these costs.

This decision highlights the importance of the conditions attached to offers to settle and the implications for costs orders when an applicant does not achieve full success in a proceeding. The court's approach to assessing costs in light of limited success and the specific instructions regarding the assessment of counsel costs provide clear guidance for future cases involving similar circumstances.

Orders

Orders of the court

As to costs, order that:

(a)respondent pay applicant’s costs of and incidental to the proceeding to the opening of the court on 3 October 2002, to be assessed.

(b)applicant pay respondent’s costs incurred after the opening of the court on 3 October 2002, to be assessed on an indemnity basis.

(c)third party pay respondent’s costs of and incidental to the third party proceeding to be assessed.

(d)third party indemnify respondent in respect of one-half of the net amount payable by the respondent to the applicant under the costs order, after setting off the amount payable by the applicant to the respondent.

Direct that the costs to be allowed for counsel be more than the costs under Part 2 of Schedule 2.

Certify that the registrar may allow a higher amount under item 27 that the registrar considers proper in the circumstances.

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:	Dale v Nichols Constructions Pty Ltd [2004] QDC 026
PARTIES:	WENDY DALE First Applicant ROBERT NORMAN DALE Second Applicant v NICHOLS CONSTRUCTIONS PTY LTD (ACN 010 763 505) Respondent and BROADBENT RADICH SAMPSON LAWYERS Third Party
FILE NO/S:	D868 of 2000
DIVISION:
PROCEEDING:	Originating application
ORIGINATING COURT:	District Court, Southport
DELIVERED ON:	4 March 2004
DELIVERED AT:	Brisbane
HEARING DATE:	24 February 2004
JUDGE:	McGill DCJ
ORDER:	As to costs, order that: (a)respondent pay applicant’s costs of and incidental to the proceeding to the opening of the court on 3 October 2002, to be assessed. (b)applicant pay respondent’s costs incurred after the opening of the court on 3 October 2002, to be assessed on an indemnity basis. (c)third party pay respondent’s costs of and incidental to the third party proceeding to be assessed. (d)third party indemnify respondent in respect of one-half of the net amount payable by the respondent to the applicant under the costs order, after setting off the amount payable by the applicant to the respondent. Direct that the costs to be allowed for counsel be more than the costs under Part 2 of Schedule 2. Certify that the registrar may allow a higher amount under item 27 that the registrar considers proper in the circumstances.
CATCHWORDS:	PRACTICE – Costs – offer to settle – whether effective – whether other order appropriate – applicant with limited success – whether assessment above scale justified. PRACTICE – Offers to settle – offer to two other parties conditional on both accepting – rules apply – whether other order appropriate. Uniform Civil Procedure Rules rr 360, 361.
COUNSEL:	M E Eliadis for the first applicant E J Morzone for the respondent D G Clothier for the third party
SOLICITORS:	Clayton Utz for the first applicant Hickey Lawyers for the respondent Bartley & Associates for the third party