GBAR (Australia) Pty Ltd v Brown (No 2) - [2020] QSC 34

SUPREME COURT OF QUEENSLAND

CITATION:

GBAR (Australia) Pty Ltd & Ors v Brown & Anor (No 2) [2020] QSC 34

PARTIES:

GBAR (AUSTRALIA) PTY LTD
ACN 166 408 635
(first applicant)
BAREND JACOBUS STOLTZ
(second applicant)
DANIEL PETRUS UYS
(third applicant)
VINCENT CHARLES MANNING
(fourth applicant)
STOLTZ SUPERANNUATION PTY LTD
ACN 141 083 052
(fifth applicant)
D. P. UYS SUPERANNUATION PTY LTD
ACN 162 567 848
(sixth applicant)
MACROCOMM (AUSTRALIA) PTY LTD
ACN 166 317 764
(seventh applicant)
v
GREGORY JOHN BROWN
(first respondent)
BROWN & CREMIN PTY LTD
ACN 128 512 961
(second respondent)

FILE NO/S:

BS No 9209 of 2016

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Bradley J

ORDER:

The applicants are to pay the respondents’ costs of the proceeding to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – UNREASONABLE REFUSAL OF OFFER – where the applicants rejected a Calderbank offer from the respondents – where the offer was made after an interlocutory decision refusing an injunction to enforce a restraint of trade – whether the applicants’ rejection of the offer was unreasonable – whether costs ought to be awarded on the indemnity basis from the date of the offer

Uniform Civil Procedure Rules 1999 (Qld), r 361

Baygol Pty Ltd v Foamex Polystyrene Pty Ltd [2005] FCA 1089, cited
Beardmore v Franklins Management Services Pty Ltd [2003] 1 Qd R 1, cited
Calderbank v Calderbank [1976] Fam 93, cited
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, cited
Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435, applied
Rosniak v Government Insurance Office (1997) 41 NSWLR 608, cited
Tector v FAI General Insurance Co Ltd [2001] 2 Qd R 463, cited

COUNSEL:

A J H Morris QC, with L A Jurth, for the applicants
R A Perry QC, with M Long, for the respondents

SOLICITORS:

Londy Lawyers for the applicants
HWL Ebsworth for the respondents

On 21 February 2020, the applicants’ claims were dismissed, judgment was pronounced for the respondents and reasons were published.[1] The parties agreed that short written submissions on costs would be provided sequentially.
[1]GBAR (Australia) Pty Ltd & Ors v Brown & Anor [2020] QSC 14.
The respondents’ written submissions were received on 21 February 2020 and the applicants’ on 28 February 2020. To their written submissions, the respondents attached a copy of a letter dated 15 December 2017, passing between their solicitors and the solicitors for the applicants. It contained an offer to compromise the whole of the proceeding by discontinuance of the applicants’ claim with each party bearing their own costs of the proceeding and with the applicants releasing the respondents from all claims (whether made in the proceeding or not).…

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: [2020] QSC 34
Decision Date: 6 March 2020

CaseChat Overview and Summary

GBAR (Australia) Pty Ltd, the applicant, sought to enforce a restraint of trade clause against the respondents, Brown. The dispute reached the court after the applicant's interlocutory application for an injunction was refused. The respondents subsequently made an offer of compromise under the Civil Procedure Act 2005 (NSW), known as a Calderbank letter, proposing to settle the matter on terms more favourable to the applicant than the outcome of the interlocutory application. The applicant rejected this offer. The court was required to determine whether the applicant's refusal of the offer was unreasonable and, if so, whether costs should be awarded on an indemnity basis from the date of the offer.

The court examined the principles surrounding Calderbank offers and the consequences of unreasonable refusals. It considered whether the offer was reasonable in light of the interlocutory decision and the prospects of success at trial. The court found that the offer was reasonable as it provided a settlement that was more advantageous to the applicant than the interlocutory outcome. The court concluded that the applicant's refusal was unreasonable, given the strength of the respondents' position and the favourable terms of the offer.

Accordingly, the court ordered that the applicant pay the respondents' costs of the proceeding. The costs were to be assessed on the standard basis, reflecting the unreasonable refusal of the Calderbank offer. The court did not award costs on an indemnity basis, as the statutory criteria for such an order were not satisfied.

The court's decision underscores the importance of considering reasonable settlement offers and the potential consequences of rejecting them without justification. The outcome serves as a reminder to parties in litigation to evaluate offers of compromise carefully and to avoid unreasonable refusals that may result in adverse cost consequences.

Orders

Orders of the court

The applicants are to pay the respondents’ costs of the proceeding 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:	GBAR (Australia) Pty Ltd & Ors v Brown & Anor (No 2) [2020] QSC 34
PARTIES:	GBAR (AUSTRALIA) PTY LTD ACN 166 408 635 (first applicant) BAREND JACOBUS STOLTZ (second applicant) DANIEL PETRUS UYS (third applicant) VINCENT CHARLES MANNING (fourth applicant) STOLTZ SUPERANNUATION PTY LTD ACN 141 083 052 (fifth applicant) D. P. UYS SUPERANNUATION PTY LTD ACN 162 567 848 (sixth applicant) MACROCOMM (AUSTRALIA) PTY LTD ACN 166 317 764 (seventh applicant) v GREGORY JOHN BROWN (first respondent) BROWN & CREMIN PTY LTD ACN 128 512 961 (second respondent)
FILE NO/S:	BS No 9209 of 2016
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	6 March 2020
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGE:	Bradley J
ORDER:	The applicants are to pay the respondents’ costs of the proceeding to be assessed on the standard basis.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – UNREASONABLE REFUSAL OF OFFER – where the applicants rejected a Calderbank offer from the respondents – where the offer was made after an interlocutory decision refusing an injunction to enforce a restraint of trade – whether the applicants’ rejection of the offer was unreasonable – whether costs ought to be awarded on the indemnity basis from the date of the offer Uniform Civil Procedure Rules 1999 (Qld), r 361 Baygol Pty Ltd v Foamex Polystyrene Pty Ltd [2005] FCA 1089, cited Beardmore v Franklins Management Services Pty Ltd [2003] 1 Qd R 1, cited Calderbank v Calderbank [1976] Fam 93, cited Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, cited Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435, applied Rosniak v Government Insurance Office (1997) 41 NSWLR 608, cited Tector v FAI General Insurance Co Ltd [2001] 2 Qd R 463, cited
COUNSEL:	A J H Morris QC, with L A Jurth, for the applicants R A Perry QC, with M Long, for the respondents
SOLICITORS:	Londy Lawyers for the applicants HWL Ebsworth for the respondents