1. The appellant must pay the respondent’s costs of the appeal to 9 February 2023 on the standard basis.
2. The appellant must pay the respondent’s costs of the appeal from 9 February 2023 as follows:
2.1 On the issue of liability, on the indemnity basis.
2.2 On the issue of quantum, on the standard basis.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – where the appellant was unsuccessful in the substantive appeal – where the respondent submits that the appellant should pay the costs on an indemnity basis – where the respondent’s made a Calderbank offer, which was rejected by the appellant – where the appellant’s grounds of appeal had ‘little prospect of success’– where the appellant submits that the respondent pay the costs of the appeal on the standard basis – whether it is appropriate to award cost on the indemnity basis
R J Douglas KC for the appellant B F Charrington KC, with R B Dickson, for the respondent
SOLICITORS:
Lee Lawyers for the appellant MBA Lawyers for the respondent
MORRISON JA and LIVESEY AJA:
Introduction
At the time this Court delivered judgment on 8 August 2023, dismissing the appellant’s appeal, the respondent applied for costs to 9 February 2023 on the standard basis, and from 9 February 2023 on the indemnity basis.
The application is made pursuant to paragraph 52 of the Supreme Court Practice Direction 3 of 2013.
The respondents have explained their application for costs by reference to an offer made on 9 February 2023, following receipt of the appellant’s outline.
The initial appeal contained 13 appeal grounds but, by the time of the appellant’s outline, these had been pared back to three grounds and a fourth ground was added concerning economic loss.[1] Pursuant to Calderbank v Calderbank,[2] the respondent offered to resolve the appeal on the basis that the appellant withdrew his appeal within 7 days, whereupon the…
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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AGLC
Doerr v Gardiner [No 2] [2024] QCA 21
Case
[2024] QCA 21
Decision Date
CaseChat Overview and Summary
In the case of Doerr v Gardiner [No 2], the respondent sought an order for indemnity costs against the appellant following an unsuccessful appeal. The appellant had been unsuccessful in his appeal against the original decision, and the respondent argued that the appellant should pay the costs of the appeal on an indemnity basis. The respondent had made a Calderbank offer, which was rejected by the appellant. The primary issue before the court was whether it was appropriate to award costs on an indemnity basis. The court had to consider the appellant's grounds of appeal and whether they had any prospect of success. The court also had to consider the Calderbank offer and whether the appellant's rejection of it was reasonable.
The court held that the appellant's appeal on liability was hopeless, and it was appropriate to award indemnity costs on liability from the date the claim was made, 9 February 2023. The court noted that the respondent's Calderbank offer did not differentiate between the cases on liability and quantum. However, the court held that the appellant's failure to accept the offer was not unreasonable or imprudent. The court exercised its discretion to make orders for costs, and the orders were that the appellant must pay the respondent's costs of the appeal to 9 February 2023 on the standard basis and thereafter on the indemnity basis for the issue of liability and the standard basis for the issue of quantum.
The court's decision was based on its assessment of the merits of the appeal and the circumstances surrounding the Calderbank offer. The court held that the appellant's grounds of appeal had little prospect of success, and the rejection of the Calderbank offer did not excuse the appellant's failure to recognise the hopelessness of his appeal on liability. The court exercised its discretion to award indemnity costs on liability, and the orders reflect that decision.
Orders
Orders of the court
1. The appellant must pay the respondent’s costs of the appeal to 9 February 2023 on the standard basis.
2. The appellant must pay the respondent’s costs of the appeal from 9 February 2023 as follows:
2.1 On the issue of liability, on the indemnity basis.
2.2 On the issue of quantum, 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
Whilst it might be said that this conclusion is reinforced by the offer made on 9 February 2023, that offer did not differentiate between the cases on liability and quantum. Although the receipt of the offer ought to have provided an occasion for reflection given the considerable, and commendable, narrowing of the issues undertaken in the appellant’s outline, it cannot be said that the failure to accept the respondent’s offer was, in the circumstances of this case, both imprudent and unreasonable. Nonetheless, this Court’s unfettered discretion as to costs is not constrained by that circumstance; even without the offer, the appellant should have recognised that his appeal on liability was hopeless. That conclusion is sufficient to warrant an award of indemnity costs on liability from the date that claim is made, 9 February 2023.Conclusion In the exercise of this Court’s discretion, it is appropriate to make orders as follows:1.The appellant must pay the respondent’s costs of the appeal to 9 February 2023 on the standard basis.2.The appellant must pay the respondent’s costs of the appeal from 9 February 2023 as follows:2.1. On the issue of liability, on the indemnity basis.2.2. On the issue of quantum, on the standard basis. BOND JA: The Court delivered its judgment on the merits of the appeal in the present proceeding on 8 August 2023, the appeal having been heard on 30 May 2023.[22] The following reasons assume familiarity with the facts and analysis expressed in that judgment.[22]See Doerr v Gardiner [2023] QCA 160. Paragraph 52 of Practice Direction 3 of 2013 of the Supreme Court of Queensland requires that any party who wishes to make submissions or further submission on costs after the hearing of an appeal must apply for leave to do so in their written outlines of argument and/or orally at the hearing. In relation to the appeal in the present proceeding, the respondent did not take that course. To the contrary, in her written submissions on appeal, the respondent had submitted that the appeal should be dismissed and that the appellant should pay the respondent’s costs of the appeal. Nothing was said to the contrary at the hearing and no leave was sought to make further submissions. Because the Court’s decision was that the appeal should be dismissed, and in light of the submissions which had been made, the Court ordered that the appeal be dismissed, with costs. It followed from Uniform Civil Procedure Rules 1999 r 702 that any assessment of costs pursuant to such an order would be carried out on the standard basis. The respondent has since delivered written submissions seeking a variation to the costs order which had been made. The respondent contended that the appellant should pay the respondent’s costs of the appeal to 9 February 2023 on the standard basis, but thereafter on the indemnity basis. The sole basis on which the respondent has sought to justify that order was the appellant’s failure to accept a Calderbank offer[23] which the respondent had made on 9 February 2023. The respondent contended that the appellant’s failure to accept the offer was unreasonable and imprudent.[23]Namely, an offer in accordance with the principles of Calderbank v Calderbank [1975] 3 All ER 333.