Gobbert v Elders Rural Finance Services Ltd (No 2)

DISTRICT COURT OF QUEENSLAND

CITATION:

Gobbert & Ors v Elders Rural Finance Services Ltd & Anor (No 2) [2017] QDC 234

PARTIES:

JASON STANLEY GOBBERT, ALEXANDER DEAN GOBBERT AND STANLEY MORTON GOBBERT trading as GOBBERT BROS
(Plaintiffs)

v

ELDERS RURAL SERVICES AUSTRALIA LIMITED ACN 004 045 121  
(First Defendant)

and

RURAL BANK LIMITED ACN 083 938 416
(Second Defendant)

FILE NO/S:

626 of 2016

DIVISION:

Civil

PROCEEDING:

Application for costs

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

15 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Kefford DCJ

ORDER:

The plaintiffs are ordered to pay the costs of each of the first and second defendants to be assessed on the standard basis up to and including 20 February 2017, and on the indemnity basis thereafter.

CATCHWORDS:

PROCEDURE – COSTS – INDEMNITY COSTS – OFFER TO SETTLE – where the first and second defendants made an offer to settle prior to trial – where the plaintiffs did not accept the offer – where the plaintiffs’ claim was dismissed – where the defendants seek their costs on the indemnity basis, subject to their offer – whether the plaintiffs’ refusal of the defendants’ offer was unreasonable

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld), r 361, r 681, r 703

CASES:

Bert & Ors v Red 5 Limited & Anor [2017] QSC 8, followed

Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435, considered

J & D Rigging Pty Ltd v Agripower Australia Ltd [2014] QCA 23, applied

Mizikovsky v Queensland Television Limited & Ors [2013] QCA 68; [2014] 1 Qd R 197, applied

COUNSEL:

D J Pyle with S Forder for the Plaintiffs

N Ferrett for the First Defendant

SOLICITORS:

Shine Lawyers for the Plaintiffs

Crawford Legal for the First Defendant

Dibbs Barker for the Second Defendant

Background

1. On 16 February 2017, the Plaintiffs filed a Claim and Statement of Claim in this matter.  The Plaintiffs’ case was, in effect, that Jason Stanley Gobbert (on behalf of the Plaintiffs) relied on representations made by Paul Nelson (on behalf of the First Defendant and/or Second Defendant) to the effect that finance had been, or would be, approved prior to Mr Gobbert making the winning bid of $6.8 million at an auction to purchase a rural holding.  The Plaintiffs claimed those representations were misleading or deceptive within the meaning of s 12DA of the Australian Securities and Investment Commission Act 2001 (Cth).

1. The trial with respect to this action was heard on 22 to 25 May 2017, with oral submissions on 17 August 2017.

1. On 30 August 2017 I dismissed the Plaintiffs claim and ordered that the parties file and serve written submissions as to costs by 6 September 2017.  That has been done by all parties.  The Plaintiffs also filed reply submissions.

Offer to settle

1. On or about 20 February 2017, the First Defendant and Second Defendant made a joint offer to the Plaintiffs under Part 5…