Favell v Mbuzi - [2005] QDC 383

DISTRICT COURT OF QUEENSLAND

CITATION:

Favell v Mbuzi [2005] QDC 383

PARTIES:

PAUL JOSEPH FAVELL (Plaintiff)

And

JOSIYAS MBUZI (Defendant)

FILE NO/S:

BD1021 of 2005

DIVISION:

Civil

PROCEEDING:

Application for costs

ORIGINATING COURT:

District Court

DELIVERED ON:

30 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

18 November 2005

JUDGE:

Tutt DCJ

ORDERS:

1. The defendant pay the plaintiff his costs of and incidental to the action calculated on an indemnity basis under the Magistrates Court scale, save that the plaintiff’s costs of and incidental to the application to set aside judgment by default including reserved costs, be paid by the defendant on a standard basis under that scale.

2. I certify that the attendance of both counsel and solicitor at the trial of this proceeding was necessary.

CATCHWORDS:

Hearing for costs – where Offer To Settle from plaintiff and counter offer to settle from defendant – where quantum awarded in judgment no less favourable than the plaintiff’s Offer To Settle – where reserved costs from application to set aside default judgment.

Uniform Civil Procedure Rules 1999 rr 354, 360 and 361.

Connolly v Skrapulj, Supreme Court of Victoria, 434 of 1990, 2 March 1993.

Fail v Hutton & Suncorp Metway Insurance Limited [2003] QSC 291.

COUNSEL:

Mr A J Taylor for the plaintiff.

Mr J Mbuzi in person.

SOLICITORS:

Gail Malone & Associates for the plaintiff.

Judgment was delivered in this proceeding on 18 November last at which time the parties were heard on the question of costs.

It was submitted that the plaintiff had delivered to the defendant a formal Offer To Settle pursuant to Part 5 of Chapter 9 of the Uniform Civil Procedure Rules (“UCPR”) on the basis that he would accept the sum of $1,000.00 “In full and final settlement of this claim”. This Offer To Settle dated 22 September 2005 was delivered to the defendant by the plaintiff’s solicitors under cover of letter of the same date by prepaid registered post and was open for acceptance by the defendant for a period of 21 days.

It would appear that the only response by the defendant to the plaintiff’s Offer To Settle was the delivery by him of a document styled “Counter Offer To Settle” dated 9 October 2005. While this document is not in the orthodox form it purports to waive the claim for costs “….that may be available to me (the defendant)” if the plaintiff immediately discontinued his claim.[1]
[1]See paragraph 11 of that document.

At the hearing on the 18 November the defendant referred also to a further document dated 12 October 2005 which purports to be “another counter-offer” in which “1. In full and final settlement of this the defendant offers five hundred dollars ($500.00)”.[2] This additional offer is of no consequence in the matter.
[2]See paragraph 1 of this document.

Neither the plaintiff’s Offer To Settle nor the defendant’s counter offer(s) was/were accepted by either party.

In this proceeding there are also reserved costs occasioned by the defendant’s…

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 Favell v Mbuzi

Details

AGLC: Favell v Mbuzi [2005] QDC 383
Case: [2005] QDC 383
Decision Date: 30 November 2005

CaseChat Overview and Summary

In the case of Favell v Mbuzi, the plaintiff sought costs following a successful judgment against the defendant. The dispute arose from a failed offer to settle by the plaintiff, which the defendant countered. The court was required to determine the appropriate costs to be awarded, taking into account the plaintiff's offer to settle, the defendant's counter offer, and the costs associated with an application to set aside a default judgment. The court needed to balance the statutory provisions regarding offers to settle with the principles of costs in the event of a successful action.

The court considered that the quantum of costs awarded to the plaintiff was not less favourable than the plaintiff's offer to settle. This was a crucial factor in determining the appropriate costs to be awarded. The court also examined the necessity of legal representation at the trial, determining that the attendance of both counsel and solicitor was indeed necessary. The court then applied the relevant statutory provisions and principles of costs, leading to the decision that the defendant should pay the plaintiff's costs on an indemnity basis, except for the costs of the application to set aside the default judgment, which were to be paid on a standard basis.

In light of the above, the court ordered that the defendant pay the plaintiff's costs of and incidental to the action on an indemnity basis, excluding the costs related to the application to set aside the default judgment. The latter costs were to be paid by the defendant on a standard basis. The court also certified that the attendance of both counsel and solicitor at the trial was necessary. This decision underscores the importance of considering offers to settle and the specific circumstances of each case when determining costs in litigation.

The final orders of the court were that the defendant pay the plaintiff's costs of and incidental to the action on an indemnity basis, except for the costs of the application to set aside the default judgment, which were to be paid on a standard basis. The necessity of legal representation at the trial was also certified by the court.

Orders

Orders of the court

1. The defendant pay the plaintiff his costs of and incidental to the action calculated on an indemnity basis under the Magistrates Court scale, save that the plaintiff’s costs of and incidental to the application to set aside judgment by default including reserved costs, be paid by the defendant on a standard basis under that scale.

2. I certify that the attendance of both counsel and solicitor at the trial of this proceeding was necessary.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Favell v Mbuzi [2005] QDC 383
PARTIES:	PAUL JOSEPH FAVELL (Plaintiff) And JOSIYAS MBUZI (Defendant)
FILE NO/S:	BD1021 of 2005
DIVISION:	Civil
PROCEEDING:	Application for costs
ORIGINATING COURT:	District Court
DELIVERED ON:	30 November 2005
DELIVERED AT:	Brisbane
HEARING DATE:	18 November 2005
JUDGE:	Tutt DCJ
ORDERS:	1. The defendant pay the plaintiff his costs of and incidental to the action calculated on an indemnity basis under the Magistrates Court scale, save that the plaintiff’s costs of and incidental to the application to set aside judgment by default including reserved costs, be paid by the defendant on a standard basis under that scale. 2. I certify that the attendance of both counsel and solicitor at the trial of this proceeding was necessary.
CATCHWORDS:	Hearing for costs – where Offer To Settle from plaintiff and counter offer to settle from defendant – where quantum awarded in judgment no less favourable than the plaintiff’s Offer To Settle – where reserved costs from application to set aside default judgment. Uniform Civil Procedure Rules 1999 rr 354, 360 and 361. Connolly v Skrapulj, Supreme Court of Victoria, 434 of 1990, 2 March 1993. Fail v Hutton & Suncorp Metway Insurance Limited [2003] QSC 291.
COUNSEL:	Mr A J Taylor for the plaintiff. Mr J Mbuzi in person.
SOLICITORS:	Gail Malone & Associates for the plaintiff.