Ford v Nominal Defendant [No 2] - [2023] QCA 181

SUPREME COURT OF QUEENSLAND

CITATION:

Ford v Nominal Defendant [No 2] [2023] QCA 181

PARTIES:

TRENT ANTHONY FORD
(appellant)
v
NOMINAL DEFENDANT
(respondent)

FILE NO/S:

Appeal No 11582 of 2022
SC No 317 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Supreme Court at Brisbane – [2022] QSC 179 (Martin SJA)

DELIVERED ON:

8 September 2023

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Morrison JA and Applegarth J

ORDER:

The costs ordered in paragraphs 4 and 5 of the orders made on 28 April 2023 each be assessed on the indemnity basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – OFFER OF COMPROMISE OR OFFER TO SETTLE OR CONSENT TO JUDGMENT, PURSUANT TO RULES – GENERALLY – where the appellant made an offer to settle for less than the agreed quantum several weeks before the trial – where the respondent rejected the offer - where the appellant obtained a judgment no less favourable than the offer – where the respondent submits that the offer did not represent a genuine offer of compromise – whether the respondent should pay the appellant’s costs of the proceeding at first instance on an indemnity basis pursuant to rule 360 of the Uniform Civil Procedure Rules1999 (Qld) – whether the respondent has demonstrated that another order for costs is appropriate in the circumstances

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – GENERALLY – where the appellant made a Calderbank offer to settle the claim and appeal for $150,000 less than the agreed quantum – where the respondent rejected the offer – where the respondent contends that the offer did not foreshadow the appellant’s intention to seek indemnity costs – where the respondent contends that given its success at trial, the failure to accept the offer could not be unreasonable or imprudent – whether the respondent should pay the appellant’s costs of the appeal on an indemnity basis

Motor Accident Insurance Act1994 (Qld), s 51C
Uniform Civil Procedure Rules 1999 (Qld), r 360

Bankier v HAP2 Pty Ltd (No 3) [2019] QSC 186, cited
Built Qld Pty Ltd v Pro-Invest Australian Hospitality Opportunity (ST) Pty Ltd[No 2][2023] QCA 140, cited
Bulsey v State of Queensland[2016] QCA 158, cited
Ford v Nominal Defendant[2023] QCA 83, cited
Harbour Radio Pty Limited v Wagner[2020] QCA 83, cited
J & D Rigging Pty Ltd v Agripower Australia Limited[2014] QCA 23, cited
Jones v Millward [2005] 1 Qd R 498; [2005] QCA 76, cited
New South Wales Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100, cited
Rider v Pix[2019] QCA 257, cited
Shaw v Jarldorn (1999) 76 SASR 28; [1999] SASC 529, cited
The Nominal Defendant v…

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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Details

Case: [2023] QCA 181
Decision Date: 8 September 2023

CaseChat Overview and Summary

The case of Ford v Nominal Defendant [No 2] involves the appellant, Ford, and the respondent, Nominal Defendant. The central dispute revolves around the issue of costs in civil proceedings, specifically focusing on offers of compromise and indemnity costs. The matter was heard in the Queensland Court of Appeal. The appellant, Ford, had previously made an offer to settle the claim for a specified amount, which was rejected by the respondent, Nominal Defendant. Subsequently, Ford obtained a judgment that was no less favourable than the offer. The respondent argued that the offer was not genuine and contended that they should not be required to pay Ford's costs on an indemnity basis as per rule 360 of the Uniform Civil Procedure Rules 1999 (Qld).

The legal issues before the court included whether the respondent should be liable for the appellant's costs of the proceeding at first instance on an indemnity basis and whether the respondent had demonstrated circumstances warranting a different order for costs. The court considered whether the offer of compromise was genuine and whether the respondent's decision to reject the offer was reasonable or imprudent given their success at trial. Additionally, the court examined the implications of a Calderbank offer and whether the respondent's failure to accept this offer could be considered unreasonable or imprudent.

The court's reasoning focused on the principles of offers of compromise and indemnity costs. It was determined that the appellant's offer was genuine and represented a reasonable attempt at settling the dispute. Given that the respondent rejected the offer and ultimately did not achieve a more favourable outcome at trial, the court found that the respondent should be liable for the appellant's costs on an indemnity basis. The court also addressed the Calderbank offer, concluding that its rejection did not justify a different order for costs. Therefore, the court ordered that the costs previously ordered be assessed on the indemnity basis.

In conclusion, the court ordered that the costs ordered in paragraphs 4 and 5 of the orders made on 28 April 2023 each be assessed on the indemnity basis. This decision underscores the importance of considering the genuineness of offers of compromise and the consequences of rejecting such offers in civil litigation.

Orders

Orders of the court

The costs ordered in paragraphs 4 and 5 of the orders made on 28 April 2023 each be assessed on the indemnity 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

Therefore, I would order that the costs ordered in paragraph 5 of the orders made on 28 April 2023, be assessed on the indemnity basis.Conclusion I would order that the costs ordered in paragraphs 4 and 5 of the orders made on 28 April 2023 each be assessed on the indemnity basis.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ford v Nominal Defendant [No 2] [2023] QCA 181
PARTIES:	TRENT ANTHONY FORD (appellant) v NOMINAL DEFENDANT (respondent)
FILE NO/S:	Appeal No 11582 of 2022 SC No 317 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Order
ORIGINATING COURT:	Supreme Court at Brisbane – [2022] QSC 179 (Martin SJA)
DELIVERED ON:	8 September 2023
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Morrison JA and Applegarth J
ORDER:	The costs ordered in paragraphs 4 and 5 of the orders made on 28 April 2023 each be assessed on the indemnity basis.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – OFFER OF COMPROMISE OR OFFER TO SETTLE OR CONSENT TO JUDGMENT, PURSUANT TO RULES – GENERALLY – where the appellant made an offer to settle for less than the agreed quantum several weeks before the trial – where the respondent rejected the offer - where the appellant obtained a judgment no less favourable than the offer – where the respondent submits that the offer did not represent a genuine offer of compromise – whether the respondent should pay the appellant’s costs of the proceeding at first instance on an indemnity basis pursuant to rule 360 of the Uniform Civil Procedure Rules1999 (Qld) – whether the respondent has demonstrated that another order for costs is appropriate in the circumstances PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – GENERALLY – where the appellant made a Calderbank offer to settle the claim and appeal for $150,000 less than the agreed quantum – where the respondent rejected the offer – where the respondent contends that the offer did not foreshadow the appellant’s intention to seek indemnity costs – where the respondent contends that given its success at trial, the failure to accept the offer could not be unreasonable or imprudent – whether the respondent should pay the appellant’s costs of the appeal on an indemnity basis Motor Accident Insurance Act1994 (Qld), s 51C Uniform Civil Procedure Rules 1999 (Qld), r 360 Bankier v HAP2 Pty Ltd (No 3) [2019] QSC 186, cited Built Qld Pty Ltd v Pro-Invest Australian Hospitality Opportunity (ST) Pty Ltd[No 2][2023] QCA 140, cited Bulsey v State of Queensland[2016] QCA 158, cited Ford v Nominal Defendant[2023] QCA 83, cited Harbour Radio Pty Limited v Wagner[2020] QCA 83, cited J & D Rigging Pty Ltd v Agripower Australia Limited[2014] QCA 23, cited Jones v Millward [2005] 1 Qd R 498; [2005] QCA 76, cited New South Wales Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100, cited Rider v Pix[2019] QCA 257, cited Shaw v Jarldorn (1999) 76 SASR 28; [1999] SASC 529, cited The Nominal Defendant v…