Greenhalgh v Bacas Training Limited - [2007] QCA 365

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 2006

DIVISION:

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 2007

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Keane JA, Cullinane and Lyons JJ
Judgment of the Court

FURTHER 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 respondent

SOLICITORS:

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.
[1]Greenhalgh v Bacas Training Limited & Ors [2007] QCA 327.

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 That offer was that "if the appeal is withdrawn within the next seven (7) days then our client will not seek the costs of the appeal."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.
[2]Cf Lawes v Nominal Defendant [2007] QSC 103.

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…

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: [2007] QCA 365
Decision Date: 26 October 2007

CaseChat Overview and Summary

Greenhalgh v Bacas Training Limited involved a dispute between the plaintiff, Greenhalgh, and the defendant, Bacas Training Limited. The plaintiff initiated proceedings to recover unpaid wages and other entitlements. The defendants subsequently appealed the decision, but their application for leave to appeal was dismissed. The plaintiff had offered not to seek the costs of the appeal if the defendants withdrew their appeal, but the defendants failed to accept this offer. The issue before the court was whether the costs incurred after the offer should be paid on an indemnity basis, deviating from the general rule.

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.

Orders