SUPREME COURT OF QUEENSLAND
CITATION:
Greenhalgh v Bacas Training Limited & Ors [2007] QCA 365
PARTIES:
JOHN ROBERT GREENHALGH
(plaintiff/respondent)
v
BACAS TRAINING LIMITED ACN 092 797 790
(first defendant/first applicant)BCP HOLDINGS PTY LTD ACN 097 126 111 trading as BUNDABERG TOYOTA
(second defendant/second applicant)FILE NO/S:
Appeal No 3493 of 2007
DC No 21 of 2006DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave s 118 DCA (Civil) – Further Order
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
Judgment delivered 5 October 2007
Further Order delivered 26 October 2007DELIVERED AT:
Brisbane
HEARING DATE:
Heard on the papers
JUDGES:
Keane JA, Cullinane and Lyons JJ
Judgment of the CourtFURTHER ORDER:
The costs order of 5 October 2007 be varied to provide that the costs incurred by the plaintiff before 27 June 2007 be paid on the standard basis and those incurred after 27 June 2007 be paid on the indemnity basis
CATCHWORDS:
PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where defendants' application for leave dismissed – where plaintiff had offered not to seek costs of appeal if defendants withdrew appeal – where defendants failed to accept plaintiff's offer – whether costs after offer should be paid on the indemnity basis
COUNSEL:
R J Douglas SC for the applicants
D B Fraser QC, with R B Dickson, for the respondentSOLICITORS:
Carter Newell for the applicants
Payne Butler Lang for the respondent
THE COURT: On 5 October 2007, this Court dismissed the defendants' application for leave to appeal. The Court ordered the defendants to pay the plaintiff's costs on the standard basis.[1] In accordance with Practice Direction No 1 of 2005, the plaintiff was given leave to make written submissions in support of an application that the costs be paid by the defendants on the indemnity basis.
In support of this application, the plaintiff relies in particular upon the defendants' failure to accept the offer made by the plaintiff in a letter dated 20 June 2007. That offer was that "if the appeal is withdrawn within the next seven (7) days then our client will not seek the costs of the appeal."
The defendants argue that their failure to accept the offer could not be regarded as so unreasonable or imprudent as to attract an award of indemnity costs against them.[2] The defendants' first point is that the plaintiff's offer was "vague", and, indeed, "uncertain", as to the proposed disposition of the overall costs of the appeal. The defendants' second point is that the offer was only in relation to the "appeal" and was silent about the costs of the application.
The defendants' arguments split hairs between the application and the appeal. This distinction is quite without merit in this context. The defendants' appeal lay only with the grant of leave: unless leave were granted there…
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- Case
- [2007] QCA 365
- Decision Date
CaseChat Overview and Summary
The court considered the circumstances surrounding the offer and the defendants' response to it. It noted that the plaintiff's offer was clear and unequivocal, and that the defendants had not acted promptly in accepting it. The court held that the defendants' failure to accept the plaintiff's offer warranted a departure from the general rule on costs, and that the costs incurred after the offer should be paid on an indemnity basis. The court emphasised the importance of parties considering offers made during litigation carefully and acting promptly to avoid potentially adverse consequences.
The court's decision underscored the importance of parties considering offers made during litigation carefully and acting promptly to avoid potentially adverse consequences. The court held that the defendants' failure to accept the plaintiff's offer warranted a departure from the general rule on costs, and that the costs incurred after the offer should be paid on an indemnity basis. The court's decision serves as a reminder to parties of the potential consequences of failing to consider offers made during litigation carefully and acting promptly.
The court ordered that the defendants pay the plaintiff's costs of the appeal on an indemnity basis. The court also noted that the plaintiff was entitled to recover the costs of the defendants' application for leave to appeal, as well as the costs of the plaintiff's application for costs. The court's decision provides guidance on the circumstances in which costs may be awarded on an indemnity basis, and the importance of parties considering offers made during litigation carefully and acting promptly.
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