Du Pradal v Petchell (No 2) - [2014] QSC 288

SUPREME COURT OF QUEENSLAND

CITATION:

Du Pradal & Anor v Petchell (No 2) [2014] QSC 288

PARTIES:

JACQUES DU PRADAL
(first plaintiff)
PIA DU PRADAL PTY LTD (ACN 067 906 450)
(second plaintiff)
v
DAVID PETCHELL
(defendant)
v
ANDREW WILLSFORD
(third party)

FILE NO:

BS5581 of 2011

DIVISION:

Trial Division

PROCEEDING:

Applications for costs orders

DELIVERED ON:

27 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

Mullins J

ORDER:

1. The defendant must pay the first plaintiff’s costs of the proceeding on the standard basis to and including 20 June 2012 and on the indemnity basis from 20 June 2012.

2. The second plaintiff must pay the defendant’s costs of the claim brought by the second plaintiff against the defendant on the standard basis.

3. The defendant must pay the third party’s costs of the proceeding on the standard basis to and including 25 February 2013 and on the indemnity basis from 25 February 2013.

CATCHWORDS:

PROCEDURE – COSTS – RECOVERY OF COSTS – where judgment was given for the first plaintiff against the defendant in the sum of $675,203 – where in June 2012 the parties attended a compulsory conference – where the first plaintiff made a mandatory final offer of $350,000 plus costs – where the defendant made a mandatory final offer of nil – where the defendant submits that the first plaintiff’s costs should be assessed on the standard basis – whether the first plaintiff’s costs should be awarded on the standard or indemnity basis

PROCEDURE – COSTS – RECOVERY OF COSTS – where the second plaintiff’s claim against the defendant for damages for loss of services was dismissed – where the appropriate method of calculating damages was clarified by Barclay v Penberthy after the commencement of the proceeding – whether it was unreasonable for the second plaintiff to pursue the claim against the defendant – whether the defendant’s costs of the claim brought by the second plaintiff should be awarded on the standard or indemnity basis

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – THIRD PARTIES – where the defendant’s claim against the third party was dismissed – where in February 2013 the third party made a Calderbank offer which was not accepted by the defendant – where in May 2013 the third party made a formal offer to settle which was not accepted by the defendant – where the third party had been reasonable in his attempts to resolve the contribution claim made by the defendant – whether the third party’s costs should be awarded on the standard or indemnity basis

Personal Injuries Proceedings Act 2002, s 36, s 39, s 40
Uniform Civil Procedure Rules 1999, r 353, r 360

Du Pradal & Anor v Petchell [2014] QSC 261, related
State of Queensland v Hayes (No 2) [2013] QSC 80, considered
Stewart v Atco Controls Pty Ltd (in Liq)(No 2) (2014) 88 ALJR 811; [2014] HCA 31, considered

COUNSEL:

J B Rolls for 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.

Continue reading Du Pradal v Petchell (No 2)

Details

AGLC: Du Pradal v Petchell (No 2) [2014] QSC 288
Case: [2014] QSC 288
Decision Date: 27 November 2014

CaseChat Overview and Summary

Du Pradal v Petchell (No 2) involved multiple parties and complex disputes regarding costs following a series of legal proceedings. The first plaintiff, Du Pradal, was awarded judgment against Petchell in the sum of $675,203. Additionally, the second plaintiff pursued a claim against Petchell for damages related to loss of services, which was ultimately dismissed. Petchell also brought a claim against a third party, which was dismissed. The primary legal issues were the basis on which costs should be awarded in each of these matters: whether the costs should be on the standard basis or the indemnity basis.

The court examined the conduct of the parties during the proceedings to determine the appropriate basis for awarding costs. In relation to the first plaintiff, the court noted that a mandatory final offer of $350,000 plus costs was made by the first plaintiff, while Petchell made a mandatory final offer of nil. Given Petchell's refusal to accept the first plaintiff's offer, the court found that Petchell's costs should be awarded on the indemnity basis from the date of the offer, 20 June 2012. Regarding the second plaintiff, the court considered whether it was unreasonable for the second plaintiff to pursue the dismissed claim, especially in light of the clarification provided by Barclay v Penberthy. The court held that the second plaintiff's conduct did not warrant indemnity costs, and thus the second plaintiff was ordered to pay Petchell's costs on the standard basis. In the case of the third party, the court found that the third party had been reasonable in their attempts to resolve the contribution claim made by Petchell, and therefore Petchell was ordered to pay the third party's costs on the indemnity basis from the date the third party made a formal offer to settle, 25 February 2013.

The final orders of the court were that Petchell must pay the first plaintiff’s costs on the standard basis up until 20 June 2012, and on the indemnity basis from that date. The second plaintiff was ordered to pay Petchell’s costs of the claim brought against him on the standard basis. Petchell was also ordered to pay the third party’s costs on the standard basis up until 25 February 2013, and on the indemnity basis from that date. These orders reflect the court's determination of the reasonableness of each party's conduct in the respective proceedings.

Orders

Orders of the court

1. The defendant must pay the first plaintiff’s costs of the proceeding on the standard basis to and including 20 June 2012 and on the indemnity basis from 20 June 2012.

2. The second plaintiff must pay the defendant’s costs of the claim brought by the second plaintiff against the defendant on the standard basis.

3. The defendant must pay the third party’s costs of the proceeding on the standard basis to and including 25 February 2013 and on the indemnity basis from 25 February 2013.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Du Pradal & Anor v Petchell (No 2) [2014] QSC 288
PARTIES:	JACQUES DU PRADAL (first plaintiff) PIA DU PRADAL PTY LTD (ACN 067 906 450) (second plaintiff) v DAVID PETCHELL (defendant) v ANDREW WILLSFORD (third party)
FILE NO:	BS5581 of 2011
DIVISION:	Trial Division
PROCEEDING:	Applications for costs orders
DELIVERED ON:	27 November 2014
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions
JUDGE:	Mullins J
ORDER:	1. The defendant must pay the first plaintiff’s costs of the proceeding on the standard basis to and including 20 June 2012 and on the indemnity basis from 20 June 2012. 2. The second plaintiff must pay the defendant’s costs of the claim brought by the second plaintiff against the defendant on the standard basis. 3. The defendant must pay the third party’s costs of the proceeding on the standard basis to and including 25 February 2013 and on the indemnity basis from 25 February 2013.
CATCHWORDS:	PROCEDURE – COSTS – RECOVERY OF COSTS – where judgment was given for the first plaintiff against the defendant in the sum of $675,203 – where in June 2012 the parties attended a compulsory conference – where the first plaintiff made a mandatory final offer of $350,000 plus costs – where the defendant made a mandatory final offer of nil – where the defendant submits that the first plaintiff’s costs should be assessed on the standard basis – whether the first plaintiff’s costs should be awarded on the standard or indemnity basis PROCEDURE – COSTS – RECOVERY OF COSTS – where the second plaintiff’s claim against the defendant for damages for loss of services was dismissed – where the appropriate method of calculating damages was clarified by Barclay v Penberthy after the commencement of the proceeding – whether it was unreasonable for the second plaintiff to pursue the claim against the defendant – whether the defendant’s costs of the claim brought by the second plaintiff should be awarded on the standard or indemnity basis PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – THIRD PARTIES – where the defendant’s claim against the third party was dismissed – where in February 2013 the third party made a Calderbank offer which was not accepted by the defendant – where in May 2013 the third party made a formal offer to settle which was not accepted by the defendant – where the third party had been reasonable in his attempts to resolve the contribution claim made by the defendant – whether the third party’s costs should be awarded on the standard or indemnity basis Personal Injuries Proceedings Act 2002, s 36, s 39, s 40 Uniform Civil Procedure Rules 1999, r 353, r 360 Du Pradal & Anor v Petchell [2014] QSC 261, related State of Queensland v Hayes (No 2) [2013] QSC 80, considered Stewart v Atco Controls Pty Ltd (in Liq)(No 2) (2014) 88 ALJR 811; [2014] HCA 31, considered
COUNSEL:	J B Rolls for the…