Davan Developments Pty Ltd v HLB Mann Judd (Se Qld) Pty Ltd - [2016] QCA 113

SUPREME COURT OF QUEENSLAND

CITATION:

Davan Developments Pty Ltd v HLB Mann Judd (SE Qld) Pty Ltd [2016] QCA 113

PARTIES:

DAVAN DEVELOPMENTS PTY LTD
ACN 102 189 864
(appellant)
v
HLB MANN JUDD (SE QLD) PTY LTD
ACN 114 097 648
(respondent)

FILE NO/S:

Appeal No 5920 of 2015
DC No 4338 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

District Court at Brisbane – [2015] QDC 121

DELIVERED ON:

29 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Gotterson and Morrison and Philip McMurdo JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

The appellant pay the respondent’s costs of the appeal to be assessed upon the standard basis.

CATCHWORDS:

PROCEDURE – COSTS – INDEMNITY COSTS – INFORMAL OFFERS AND CALDERBANK LETTERS – UNREASONABLE REFUSAL OF OFFER – where the court dismissed the appeal – where the appeal was unsuccessful but arguable and the appellant did not act unreasonably – where, after written submissions were filed in the appeal, the respondent made an offer to settle on the terms that each party would bear their own costs of the appeal and that the parties would execute a deed of settlement releasing, discharging and indemnifying the respondent – where the respondent contends that the appellant unreasonably rejected the offer – whether the appellant was unreasonable in rejecting the offer so as to warrant an order of costs on the indemnity basis

COUNSEL:

No appearance by the appellant, the appellant’s submissions were heard on the papers
No appearance by the respondent, the respondent’s submissions were heard on the papers

SOLICITORS:

No appearance for the appellant
No appearance for the respondent

GOTTERSON JA: I agree with the order proposed by Philip McMurdo JA and with the reasons given by his Honour.
MORRISON JA: I have read the reasons of Philip McMurdo JA regarding further costs orders in this matter. I agree with those reasons and with the proposed order that the appellant pay the respondent’s costs of the appeal to be assessed upon the standard basis.
PHILIP McMURDO JA: On 12 April 2016 the court dismissed this appeal. The remaining question concerns the costs of the appeal. The appellant agrees that it should pay them but the respondent seeks them upon the indemnity basis.
The appeal, although unsuccessful, was arguable and there was nothing about the conduct of the appeal which could warrant indemnity costs being ordered. The respondent’s argument relies upon its offer to settle the appeal after the parties had filed their outlines of argument. There is evidence that the respondent’s legal costs, including counsel’s fees and disbursements, of the appeal up to the date of the offer, which was made on 31 August 2015, were approximately $48,000.
The respondent then offered to pay its own costs of the appeal if the appellant abandoned it. But there were further terms of the offer and the respondent also required…

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] QCA 113
Decision Date: 29 April 2016

CaseChat Overview and Summary

In Davan Developments Pty Ltd v HLB Mann Judd (Se Qld) Pty Ltd, the court addressed a dispute regarding indemnity costs following an unsuccessful appeal. The case revolved around whether the appellant, Davan Developments, was unreasonable in rejecting an offer made by the respondent, HLB Mann Judd, to settle the appeal on terms that included each party bearing their own costs and executing a deed of settlement. The appeal before the court was from an earlier decision where the primary judge had ordered the appellant to pay the respondent's costs of the appeal on an indemnity basis, a decision the appellant contested.

The central legal issue before the court was whether the appellant's rejection of the respondent's settlement offer constituted an unreasonable refusal that warranted an order for indemnity costs. The court examined the nature of the offer and whether the appellant's decision to reject it was unreasonable given the circumstances, including the arguability of the appeal and the conduct of the appellant.

The court found that while the appeal was ultimately unsuccessful, it was arguable and the appellant did not act unreasonably in rejecting the settlement offer. The respondent's offer was made after the completion of written submissions, which the court considered a late stage in the proceedings. The court held that the appellant's decision to reject the offer was not unreasonable, particularly given the potential implications of accepting the offer, such as the need to execute a deed of settlement. As a result, the court dismissed the appeal and ordered that the appellant pay the respondent’s costs of the appeal to be assessed on the standard basis.

In conclusion, the court determined that the appellant was not unreasonable in rejecting the settlement offer, and therefore, the order for indemnity costs was inappropriate. The appeal was dismissed, and the appellant was directed to pay the respondent's costs of the appeal on the standard basis.

Orders

Orders of the court

The appellant pay the respondent’s costs of the appeal to be assessed upon 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:	Davan Developments Pty Ltd v HLB Mann Judd (SE Qld) Pty Ltd [2016] QCA 113
PARTIES:	DAVAN DEVELOPMENTS PTY LTD ACN 102 189 864 (appellant) v HLB MANN JUDD (SE QLD) PTY LTD ACN 114 097 648 (respondent)
FILE NO/S:	Appeal No 5920 of 2015 DC No 4338 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Order
ORIGINATING COURT:	District Court at Brisbane – [2015] QDC 121
DELIVERED ON:	29 April 2016
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Gotterson and Morrison and Philip McMurdo JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	The appellant pay the respondent’s costs of the appeal to be assessed upon the standard basis.
CATCHWORDS:	PROCEDURE – COSTS – INDEMNITY COSTS – INFORMAL OFFERS AND CALDERBANK LETTERS – UNREASONABLE REFUSAL OF OFFER – where the court dismissed the appeal – where the appeal was unsuccessful but arguable and the appellant did not act unreasonably – where, after written submissions were filed in the appeal, the respondent made an offer to settle on the terms that each party would bear their own costs of the appeal and that the parties would execute a deed of settlement releasing, discharging and indemnifying the respondent – where the respondent contends that the appellant unreasonably rejected the offer – whether the appellant was unreasonable in rejecting the offer so as to warrant an order of costs on the indemnity basis
COUNSEL:	No appearance by the appellant, the appellant’s submissions were heard on the papers No appearance by the respondent, the respondent’s submissions were heard on the papers
SOLICITORS:	No appearance for the appellant No appearance for the respondent