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Elphick v Elliott

Elphick v Elliott

Case [2002] QSC 285 19 September 2002

Civil Litigation & Procedure

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SUPREME COURT OF QUEENSLAND

CITATION: Elphick v Elliott & Anor [2002] QSC 285

PARTIES: JASON DREW ELPHICK
(Plaintiff/Respondent)
v
GRAHAM JOSEPH ELLIOTT
(First Defendant)
and
MMI GENERAL INSURANCE (ACN 000122850)
(Second Defendant/Applicant)

FILE NO: S22 of 1999

DIVISION: Trial Division

DELIVERED ON: 19 September 2002

DELIVERED AT: Rockhampton

HEARING DATE: 16 September 2002

JUDGE: Dutney J

ORDERS:Order that the costs ordered to be paid by the respondent be set-off against the costs ordered to be paid by the applicant including costs of applications subsequent to the judgments.
CATCHWORDS: COSTS – SET-OFF – DISCRETION – whether the Court has jurisdiction to make an Order to set-off costs to be assessed against damages – whether discretion should be exercised - where power previously in Order 91 Rule 11 – where no equivalent rule appears in the Uniform Civil Procedure Rules – where applicant has failed to take any step towards an assessment of costs - unreasonable delay

Rule 734 Uniform Civil Procedure Rules
Rule 709 Uniform Civil Procedure Rules

Howell v Harding (1807) 8 East 362, distinguished
Carr v Boxall [1960] 1 WLR 314, discussed
Cook v Swinfen [1967] 1 WLR 457 (CA), discussed
Lang v Webber (1815) 1 Price 375, distinguished
Pringle v Gloag (1879) 10 Ch 676, distinguished
Edwards v Hope (1885) 14 QBD 922, distinguished
Lockley v Blood Transfusion Services [1992] 1 WLR 492, followed
Hill v Ziymack (1908) 7 CLR 352, cited
Rawson v Samuel (1841) 41 ER 451, discussed
James v Commonwealth Bank of Australia (1992) 37 FCR 445, cited
Lord v Direct Acceptance Corporation (1993) 32 NSWLR 362 (CA), cited
Hazcor Pty Ltd v Kirwanon (1998) 12 WAR 62 (FC), cited
Walker v Secreatry Department of Social Security (1995) FCR 354 (FC), cited

COUNSEL:Mr G.F. Crow for the Plaintiff/Respondent.
Mr F.G. Forde for the first and second Defendants/Applicant.

SOLICITORS: Klein and Associates (town agents John Murphy & Co) for the Plaintiff/Respondent.

McMahons National Lawyers ( town agents Grant & Simpson) the first and second Defendants/Applicant.

On 22 June 2002 I gave judgement in favour of the plaintiff/respondent in a claim for personal injury arising out of a motor vehicle accident. The amount of the judgement was $97,008.24. This amount was less than an offer of settlement made by the second defendant/applicant on 25 October 2001.

The result of the respondent failing to beat the offer was that on 9 July 2002 he was awarded his costs of the action on the standard basis up to 25 October 2001 and ordered to pay the applicant’s costs from that date. The applicant’s costs included the costs of the trial. The trial lasted 4 days.

On 26 July 2002 the applicant applied unsuccessfully for a stay of execution of the judgment until its costs had been assessed. On 9 August 2002 the applicant appealed against my refusal of the stay. On 6 September 2002 the applicant’s application for a stay of the judgement pending the hearing of its appeal came before…

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 Elphick v Elliott

Details

AGLC: Elphick v Elliott [2002] QSC 285
Case: [2002] QSC 285
Decision Date: 19 September 2002

CaseChat Overview and Summary

Elphick v Elliott is a case heard by the Supreme Court of Queensland. The plaintiff, Jason Drew Elphick, sued the first defendant, Graham Joseph Elliott, and the second defendant, MMI General Insurance (ACN 000122850), for personal injury damages arising from a motor vehicle accident. The plaintiff's damages were awarded in the amount of $97,008.24, which was less than a settlement offer made by the second defendant. The plaintiff was awarded costs of the action on the standard basis up to a certain date, but had to pay the second defendant's costs from that date onwards. The second defendant then applied for an order to set-off the costs order in its favour against the judgment in favour of the plaintiff.

The legal issues in this case were whether the court had the power to set-off the costs against the judgment debt and whether, in the exercise of its discretion, it should do so. Prior to the Uniform Civil Procedure Rules, the power to set-off was undoubted. However, no equivalent rules appear in the Uniform Civil Procedure Rules. The court considered various authorities on the matter and found that the source of the power to order set-off should be followed. The court also considered the "impeachment test" as the basis of an equitable set-off, which found support in several cases. The court found that a sum of damages arising from the negligence of the first defendant could be impeached by an award of costs at a trial such as to empower it to order a set-off.

The consideration that concerned the court most in relation to the exercise of discretion was the delay of the second defendant in having the costs assessed. The court found that the second defendant had been more intent on withholding sufficient money to insure itself against any possibility of being out of pocket for costs than it had been to see the plaintiff paid that which was owing. The court found that the applicant had not even commenced on the process of preparing a proper bill and submitting it so that the true state of the account could be ascertained. The court ultimately decided not to exercise its discretion to grant a set-off in favour of the second defendant, and dismissed the application. However, the court did order that the costs orders in favour of the applicant and the defendant be set-off because it was uncontested.

Orders