Frost v Miller (No 2) - [2015] QSC 214

SUPREME COURT OF QUEENSLAND

CITATION:

Frost v Miller (No 2) [2015] QSC 214

PARTIES:

CHRISTINA SOPHIA FROST
(applicant)
v
ROSALINE MILLER
(respondent)

FILE NO/S:

SC No 46 of 2014

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

29 July 2015

DELIVERED AT:

Brisbane

HEARING DATE:

13 January 2015

JUDGES:

Justice Carmody

ORDERS:

The order of the Court is that the respondent must pay the applicant’s costs of and incidental to the proceedings, to be assessed on the standard basis.

CATCHWORDS:

CIVIL LAW – APPLICATION – COSTS – where the applicant was successful in securing a declaration from the Supreme Court that a conditional costs agreement executed by the applicant and respondent was void – where the applicant submitted a Calderbank letter to the respondent offering to settle the proceedings before the hearing – where the ground upon which the applicant was ultimately successful was only raised during the application hearing and respondent entered into an insurance agreement for certain motor vehicles – whether costs should be awarded in favour of the applicant – whether costs should be awarded on the standard basis.

Legal Profession Act 2007 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

Fowdh v Fowdh (New South Wales Court of Appeal, 4 November 1993, unreported)
Castro v Hillery & Ors [2003] 1 Qd R 651; [2002] QCA 359
Royce Industrial Power (Pacific) Ltd v James Hardie & COI Pty Ltd (2001) 53 NSWLR 626

COUNSEL:

S Deaves for the applicant
R A I Myers for the respondent

SOLICITORS:

D Sekac of Macrossan & Amiet for the applicant
R Miller of Preston Miller Lawyers for the respondent

JUSTICE CARMODY: The applicant filed an originating application on 14 October 2014 with the Queensland Supreme Court for a declaration under s 327(1) of the Legal Profession Act 2007 (Qld) that the conditional costs agreement executed by the applicant and respondent in July 2011 is void.

The originating application was heard on 13 January 2015 before the Supreme Court of Queensland at Mackay. On 9 June 2015 the Supreme Court allowed the application of the applicant, and declared the conditional costs agreement void.

The respondent made a formal offer to settle to the applicant on 18 December 2014 on the terms that:

1. the costs agreement is declared void;

2. the applicant pay the respondent’s costs of and incidental to the original personal injuries and property damage claim on the District Court Scale; and

3. no order be made as to the costs of and incidental to the application filed on 14 October 2014.

The applicant made a formal offer to settle to the respondent on 24 December 2014 on the terms that:

1. the costs agreement is void;

2. the applicant pay the respondent’s costs of and incidental to acting on behalf of the applicant in the original personal injuries and property damage claim on the District Court Scale up to and including the date on which the respondent purported to terminate the retainer on 29…

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 Frost v Miller (No 2)

Details

AGLC: Frost v Miller (No 2) [2015] QSC 214
Case: [2015] QSC 214
Decision Date: 29 July 2015

CaseChat Overview and Summary

Frost commenced proceedings against Miller seeking a declaration that a conditional costs agreement was void, as well as for other relief. The dispute was heard and determined in the Supreme Court. Frost was successful in obtaining the declaration sought. The matter now before the court is an application by Frost for an order that Miller pay Frost's costs of and incidental to the proceedings on the standard basis.

The legal issue before the court was whether Frost was entitled to costs on the standard basis. Miller contended that Frost should not be awarded costs on the standard basis because Frost had not made a genuine attempt to settle the proceedings, as evidenced by the Calderbank letter and the insurance agreement. Frost submitted that the Calderbank letter was an offer to settle the proceedings and the insurance agreement did not constitute a genuine offer to settle.

The court found that Frost's Calderbank letter was an offer to settle the proceedings, and that Miller had not made a genuine offer to settle the proceedings. The court held that Frost was entitled to costs on the standard basis. The court found that the fact that Frost had not made a genuine attempt to settle the proceedings did not deprive Frost of the right to costs on the standard basis.

The order of the court was that Miller must pay Frost's costs of and incidental to the proceedings, to be assessed on the standard basis.

Orders

Orders of the court

The order of the Court is that the respondent must pay the applicant’s costs of and incidental to the proceedings, to be assessed on the standard 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Frost v Miller (No 2) [2015] QSC 214
PARTIES:	CHRISTINA SOPHIA FROST (applicant) v ROSALINE MILLER (respondent)
FILE NO/S:	SC No 46 of 2014
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court at Mackay
DELIVERED ON:	29 July 2015
DELIVERED AT:	Brisbane
HEARING DATE:	13 January 2015
JUDGES:	Justice Carmody
ORDERS:	The order of the Court is that the respondent must pay the applicant’s costs of and incidental to the proceedings, to be assessed on the standard basis.
CATCHWORDS:	CIVIL LAW – APPLICATION – COSTS – where the applicant was successful in securing a declaration from the Supreme Court that a conditional costs agreement executed by the applicant and respondent was void – where the applicant submitted a Calderbank letter to the respondent offering to settle the proceedings before the hearing – where the ground upon which the applicant was ultimately successful was only raised during the application hearing and respondent entered into an insurance agreement for certain motor vehicles – whether costs should be awarded in favour of the applicant – whether costs should be awarded on the standard basis. Legal Profession Act 2007 (Qld) Uniform Civil Procedure Rules 1999 (Qld) Fowdh v Fowdh (New South Wales Court of Appeal, 4 November 1993, unreported) Castro v Hillery & Ors [2003] 1 Qd R 651; [2002] QCA 359 Royce Industrial Power (Pacific) Ltd v James Hardie & COI Pty Ltd (2001) 53 NSWLR 626
COUNSEL:	S Deaves for the applicant R A I Myers for the respondent
SOLICITORS:	D Sekac of Macrossan & Amiet for the applicant R Miller of Preston Miller Lawyers for the respondent