Elias v Forsyth

SUPREME COURT OF QUEENSLAND

CITATION:

Elias v Forsyth & Anor [2004] QSC 369

PARTIES:

STEPHEN ANTHONY ELIAS
(applicant)
v
DONALD CAMERON FORSYTH
(first respondent)
and
ELLA CHRISTINE FORSYTH
(second respondent)

FILE NO:

SC No 4889 of 2004

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

28 September 2004

JUDGE:

Chesterman J

ORDER:

1.  That the order for costs made on 28 September 2004
     be vacated.

2.  That the defendants pay the plaintiff’s costs of and
     incidental to the action to be assessed on the indemnity
     basis.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where the plaintiff had made an offer to settle the dispute – where the offer was rejected by the defendants – where judgment was eventually awarded in favour of the plaintiff with an order that the defendants pay the plaintiff’s costs on the standard basis – where judgment was no less favourable than the offer to settle – whether costs should have been awarded on an indemnity basis.

Uniform Civil Procedure Rules 1999 (Qld), r 360

COUNSEL:

Mr S S W Couper QC

Mr P J Dunning

SOLICITORS:

Hopgood Ganim for the applicant

Varro Clarke & Co for the respondents

COSTS JUDGMENT

1. On 28 September last I made a declaration in favour of the plaintiff’s claim that he had exercised a contractual right to extend the time given to him by an agreement to exercise an option to purchase land from the defendants.  I then made an order that the defendants should pay the plaintiff’s costs of the action to be assessed on the standard basis.  The plaintiff’s solicitors asked for costs on the indemnity basis and tendered a letter dated 2 July 2004 which they had written to the defendants’ solicitors pursuant to UCPR 360 offering to settle the dispute.  The defendants’ solicitor was unprepared for the application and I directed the parties to exchange written submissions which I have now received.

1. The letter was written only a month after the action had commenced, though it must be said that it proceeded with commendable despatch and concluded with the delivery of judgment on 28 September 2004.  The letter read:

‘… We received instructions … to put an offer to your clients pursuant to Part 5 of the Uniform Civil Procedure Rules.

Our client’s offer is that:

1.It is agreed that our client has validly extended the expiry date of the option exercise period to 31 July 2004;

2.The option agreement is rectified so that the correct title descriptions of the land are Lot 1 in RP 22225, Lot 2 in RP 22226, Lot 21 on CPS 151812, Lot 90 on CPM 311, Lot 94 on CPM 311, Lot 4 in RP 139920 and Lot 25 on CPS 15182;

3.Our client returns the cheque for $20,000 he is holding;

4.Each party bears their own costs of and incidental to the proceedings to date.