Habig v McCrae - [2014] QSC 69

SUPREME COURT OF QUEENSLAND

CITATION:

Habig v McCrae & ors [2014] QSC 69

PARTIES:

JOHANNES BAPTIST HABIG
(plaintiff)

v
IAN ALLAN McCRAE
(first defendant)
JWB HOLDINGS PTY LTD
(ACN 101 841 338)
(second defendant)
SUNCORP METWAY INSURANCE LIMITED
(ACN 075 695 966)

(third defendant)

FILE NO/S:

65 of 2012

DIVISION:

Trial

PROCEEDING:

Costs Hearing

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

7 April 2014

DELIVERED AT:

Cairns

HEARING DATE:

18 December 2013

JUDGE:

Henry J

ORDERS:

The third defendant pay the plaintiff’s costs on the standard Supreme Court scale up to and including 31 December 2010.1.

The plaintiff pay the third defendant’s costs of and incidental to the action on the standard Supreme Court scale as and from 1 January 2011 including all costs in respect of applications including the orders made on 28 October 2011, 7 June 2013, 2 August 2013, 9 October 2013 and the costs reserved on the first day of trial.2.

The assessed costs ordered to be paid by the plaintiff be set off against the judgment sum and any assessed costs order to be paid by the third defendant prior to any payment by the third defendant to the plaintiff of, or execution on, the balance after such set off.3.

4.       Liberty to apply in connection with the third defendant’s undertaking of expedition on the giving of three days notice in writing.

CATCHWORDS:

PROCEDURE – COSTS – RECOVERY OF COSTS – where the plaintiff claims it was unreasonable to accept the third defendant’s Calderbank offer – whether it was unreasonable for the plaintiff not to accept the third defendant’s Calderbank offer after the expiration of a reasonable period within which it could have made enquiries to assess its prospects of success – whether indemnity costs ought be awarded – whether costs ought be awarded on the District or Supreme Court scale – whether costs ought be set off against the judgment sum

Motor Accident Insurance Act 1994 (Qld) s 51C(10)
Uniform Civil Procedure Rules 1999 (Qld) s 361(1), s 681(1)

Calderbank v Calderbank [1975] 3 WLR 586, applied
Chen v Chan (no 2) [2009] VSCA 233, cited
Elite Protective Personnel v Salmon [2007] NSWCA 322, applied
Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (no 2) (2005) 13 VR 435, applied
Leichhardt Municipal Council v Green [2004] NSWCA 341, applied

Mansi v O’Connor and Ors [2012] QSC 374, considered

COUNSEL:

M Glen for the plaintiff
G Crow for the third defendant

SOLICITORS:

Murray & Lyons Solicitors for the plaintiff

Jensen McConaghy for the third defendant

Judgment was given in this matter on 6 December 2013 at which time it was foreshadowed the parties would be heard as to interest and costs.

Judgment favoured the plaintiff. Quantum was agreed at $800,000 however the judgment made an apportionment of 50 per cent for contributory negligence. Judgment was therefore awarded to the plaintiff in the sum of $400,000. It is common ground the quantum settled was inclusive…

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 Habig v McCrae

Details

AGLC: Habig v McCrae [2014] QSC 69
Case: [2014] QSC 69
Decision Date: 7 April 2014

CaseChat Overview and Summary

In Habig v McCrae, the dispute involved the plaintiff, Habig, seeking recovery of costs against the third defendant, McCrae, following litigation. The case was heard in the Supreme Court of New South Wales. The plaintiff contested the reasonableness of the third defendant’s Calderbank offer, arguing it was unreasonable to accept the offer after the expiration of a reasonable period for making enquiries about prospects of success. The plaintiff also sought indemnity costs and argued for costs to be awarded on the Supreme Court scale, rather than the District Court scale, and requested that costs be set off against the judgment sum.

The court examined whether the plaintiff’s decision not to accept the Calderbank offer was reasonable, considering the time elapsed and the plaintiff’s ability to assess its chances of success. Additionally, the court assessed the appropriateness of awarding indemnity costs and the correct scale of costs, as well as the setting off of costs against the judgment sum. The court held that the plaintiff’s refusal to accept the Calderbank offer was unreasonable, and that indemnity costs were not warranted. The court also decided that costs should be assessed on the Supreme Court scale and ordered that costs be set off against the judgment sum.

The orders made by the court mandated that the third defendant pay the plaintiff’s costs on the Supreme Court scale up until 31 December 2010. Conversely, the plaintiff was to pay the third defendant’s costs from 1 January 2011, including costs related to applications made throughout the proceedings. The assessed costs were to be set off against the judgment sum, with any costs owed by the plaintiff to be deducted before the third defendant made further payments to the plaintiff. Finally, the third defendant was granted liberty to apply for expedition, provided they gave three days' written notice.

Orders

Orders of the court

The third defendant pay the plaintiff’s costs on the standard Supreme Court scale up to and including 31 December 2010.1.

The plaintiff pay the third defendant’s costs of and incidental to the action on the standard Supreme Court scale as and from 1 January 2011 including all costs in respect of applications including the orders made on 28 October 2011, 7 June 2013, 2 August 2013, 9 October 2013 and the costs reserved on the first day of trial.2.

The assessed costs ordered to be paid by the plaintiff be set off against the judgment sum and any assessed costs order to be paid by the third defendant prior to any payment by the third defendant to the plaintiff of, or execution on, the balance after such set off.3.

4. Liberty to apply in connection with the third defendant’s undertaking of expedition on the giving of three days notice in writing.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Habig v McCrae & ors [2014] QSC 69
PARTIES:	JOHANNES BAPTIST HABIG (plaintiff) v IAN ALLAN McCRAE (first defendant) JWB HOLDINGS PTY LTD (ACN 101 841 338) (second defendant) SUNCORP METWAY INSURANCE LIMITED (ACN 075 695 966) (third defendant)
FILE NO/S:	65 of 2012
DIVISION:	Trial
PROCEEDING:	Costs Hearing
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	7 April 2014
DELIVERED AT:	Cairns
HEARING DATE:	18 December 2013
JUDGE:	Henry J
ORDERS:	The third defendant pay the plaintiff’s costs on the standard Supreme Court scale up to and including 31 December 2010.1. The plaintiff pay the third defendant’s costs of and incidental to the action on the standard Supreme Court scale as and from 1 January 2011 including all costs in respect of applications including the orders made on 28 October 2011, 7 June 2013, 2 August 2013, 9 October 2013 and the costs reserved on the first day of trial.2. The assessed costs ordered to be paid by the plaintiff be set off against the judgment sum and any assessed costs order to be paid by the third defendant prior to any payment by the third defendant to the plaintiff of, or execution on, the balance after such set off.3. 4. Liberty to apply in connection with the third defendant’s undertaking of expedition on the giving of three days notice in writing.
CATCHWORDS:	PROCEDURE – COSTS – RECOVERY OF COSTS – where the plaintiff claims it was unreasonable to accept the third defendant’s Calderbank offer – whether it was unreasonable for the plaintiff not to accept the third defendant’s Calderbank offer after the expiration of a reasonable period within which it could have made enquiries to assess its prospects of success – whether indemnity costs ought be awarded – whether costs ought be awarded on the District or Supreme Court scale – whether costs ought be set off against the judgment sum Motor Accident Insurance Act 1994 (Qld) s 51C(10) Uniform Civil Procedure Rules 1999 (Qld) s 361(1), s 681(1) Calderbank v Calderbank [1975] 3 WLR 586, applied Chen v Chan (no 2) [2009] VSCA 233, cited Elite Protective Personnel v Salmon [2007] NSWCA 322, applied Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (no 2) (2005) 13 VR 435, applied Leichhardt Municipal Council v Green [2004] NSWCA 341, applied Mansi v O’Connor and Ors [2012] QSC 374, considered
COUNSEL:	M Glen for the plaintiff G Crow for the third defendant
SOLICITORS:	Murray & Lyons Solicitors for the plaintiff Jensen McConaghy for the third defendant