Hampson v Jackson (No. 2)

[2025] QDC 115

DISTRICT COURT OF QUEENSLAND

CITATION:

Hampson & Ors v Jackson (No. 2) [2025] QDC 115

PARTIES:

Harry Edmund Edgar Hampson

(First plaintiff)

and

Greta Rose Kathleen Hampson

(Second plaintiff)

and

Edmund John Cedric Hampson

(Third plaintiff)

and

Ava Elizabeth Grace Hampson

(Fourth plaintiff)

and

John James Edmund Hampson, by his litigation guardian, Pepita Marie Hampson

(Fifth plaintiff)

and

Edmund Cecil Cedric Edward Hampson

(Sixth plaintiff)

and

Clayfield Administration Services

ACN 607 567 484

(Seventh plaintiff)

v

Carmen Louise Jackson

(Defendant)

FILE NO/S:

2346 of 2024

DIVISION:

Civil

PROCEEDING:

Costs hearing

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

2 September 2025

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers.

JUDGES:

Byrne KC DCJ

ORDERS:

1.     The defendant is to pay the plaintiffs’ costs of and incidental to the hearing of 21 November 2024 (resulting in the order made 22 November 2024) on the standard basis, as assessed or agreed.

2.     The plaintiffs are to pay the defendant’s costs of and incidental to the separate question hearing from 22 November 2024 on the indemnity basis, as assessed or agreed.

3.     The plaintiffs are to pay the defendant’s costs of and incidental to the separate question hearing incurred prior to 22 November 2024, if any, on the standard basis, as assessed or agreed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – where the plaintiffs commenced proceedings seeking orders for the return of numerous items of property and related damages – where an order was made on 22 November 2024 for the plaintiffs’ recovery of all but 23 items of property and costs awarded to the plaintiff up until 18 October 2024 and costs reserved thereafter – where the defendant made an offer on 18 October 2024 and another offer on 14 November 2024 concerning the orders made 22 November 2024 – where neither offer was accepted – whether the defendant is entitled to costs of that proceeding on the indemnity basis.

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – where a separate question hearing took place regarding the remaining 23 items of property and some others that were added to the proceeding – where the defendant sent an offer of compromise on 14 November 2024 in relation to the separate question hearing on 22 November 2024, which was open until 25 November 2024 – where the offer was refused – where the defendant substantially succeeded on the separate question hearing – whether the offer of compromise was reasonable – whether costs should be ordered on an indemnity basis on and from 22 November 2024.

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld), rule 681.

CASES:

Calderbank v Calderbank [1976] Fam 93.
Hampson & Ors v Jackson [2025] QDC 36.
Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No. 2) [2005] 13 VR 435.
J & D Rigging Pty Ltd v Agripower Australia Limited & Ors [2014] QCA 23.
Oshlack v Richmond River Council [1998] 193 CLR 72.
Speets Investment Pty Ltd v Bencol Pty Ltd (No. 2) [2021] QCA 39.

COUNSEL:

Mr. A.J.H. Morris KC for the plaintiffs.

Mr M.T. Brady KC for the defendant.

SOLICITORS:

Plastiras Lawyers for the plaintiffs.

Agility Law Group for the defendant.

Background

1. On 22 August 2024, the seven plaintiffs commenced proceedings seeking orders for the delivery of a total of 113 items, or categories of items, and damages for detinue, for trover and conversion and for trespass to chattels. The event which precipitated the claim was a relationship breakdown that occurred in late July 2024 or early August 2024 and a continuing dispute over the possession, or otherwise, of items of property following that breakup. It can be seen that proceedings were commenced very shortly after that incident.

2. On 11 September 2024, orders were made granting leave to amend the Claim and Statement of Claim. Those amended documents were filed and they sought the same style of orders but now concerning 122 items, or categories of items. In due course a Defence was filed. The plaintiffs’ Reply asserted further items that were missing or returned in incomplete form.

3. By order dated 22 November 2024,[1] the plaintiffs obtained summary judgment for recovery of possession of all but 23 items. Costs were awarded, as assessed or agreed, to the plaintiffs up to 18 October 2024, with costs after that date reserved. The significance of the date 18 October 2024 is that as will be observed, the defendant made an offer to compromise the proceedings on that date. Further offers to compromise were made after that date also.

   [1]The hearing was held on 21 November 2024 and the form of orders settled and then signed by his Honour in Chambers.

4. Also, further orders were made on 22 November 2024 to, in effect, facilitate a separate question hearing concerning the then 23 items in dispute listed in the Amended Statement of Claim as well as further items referred to in the Reply (the disputed items).

5. That hearing was conducted before me, and held over two days commencing 28 November 2024. It involved one item said to be owned by the fourth plaintiff, one item by the fifth plaintiff and 30 items by the sixth plaintiff.  Each side was partially successful and orders were made which gave effect to the reasons, and also remitted the proceedings to the Magistrates Court for assessment of damages and any other issues in the proceeding not yet disposed of. [2]

   [2]Hampson & Ors v Jackson [2025] QDC 36 (“the reasons”).

6. The costs reserved by the order of 22 November 2024 and those of the separate question hearing, as well as any other unresolved costs, were the subject of written submissions, consistent with the third order made by me.

   Other relevant chronology and the parties’ positions

7. On 9 September 2024, the defendant sent an open letter to the plaintiffs proposing consent orders that could be made when the matter was before Court on 11 September 2024. The proposed consent orders would not have finalised the proceedings, but the defendant proposed resolving the dispute with minimal expense. The plaintiffs considered the specific proposals were, overall, unreasonable.

8. Between 13 September 2024 and 2 October 2024, the plaintiffs took custody of all items the subject of the proceedings which the defendant acknowledged she was in possession of at the time the proceedings were commenced.

9. On 18 October 2024, the defendant sent an open letter to the plaintiffs proposing that a consent order be made for the delivery by the defendant of all items referred to in the ASOC, save for seven specified items, as well as for damages (to be assessed or agreed) for the retrieval of some items from the Gregor’s Creek property. It was also proposed that the defendant pay the plaintiffs’ costs of the proceeding to and including 18 October 2024. The plaintiffs were put on notice that if the offer was not accepted, the letter would be used to found costs on the indemnity basis on and from that date. The offer was left open until 1 November 2024, but was not accepted.

10. On 21 October 2024, the plaintiffs filed their Reply which, as earlier noted, contained an updated list of items in dispute and included certain items for the first time.

11. On 24 October 2024, the defendant, in effect, updated her offer of 18 October 2024 to reflect the further additional items. The updated offer retained the defendant’s position as to indemnity costs. That updated offer was not accepted either.

12. On 14 November 2024, the defendant sent an open letter to the plaintiffs proposing that the proceedings be compromised on the basis that the plaintiffs have summary judgment for all but 23 items, plus costs up to 18 October 2024. The offer was open until 18 November 2024. The letter specifically notified the plaintiffs that if the offer was not accepted, costs from 18 October 2024 would be sought on the indemnity basis. No response was received.

13. On 22 November 2024, the earlier mentioned orders were made. The defendant did not oppose the summary judgment orders. The (then) 23 disputed items which were the subject of the separate question hearing were the same 23 items referred to in the offer of 14 November 2024.

14. On 22 November 2024, the defendant wrote to the plaintiffs offering to compromise the separate question hearing on the basis that, although not in actual possession of the items, the defendant would consent to judgment ordering summary recovery of possession of 22 items (thereby allowing an assessment of damages in respect of those items) with costs to be determined by the Court for the period 18 October 2024 to 21 November 2024. It was further proposed that there be no order as to costs thereafter. The offer was expressed to be made in accordance with the principles in Calderbank v Calderbank [1976] Fam 93, and it was stated to be open until 25 November 2024. It was not accepted.

15. It is in that context that the plaintiffs submit that they should be paid their costs, on the standard basis on the District Court scale. On the other hand, the defendant submits that costs should be ordered:

    (a)In respect of the costs of and incidental to the separate question hearing, the plaintiffs should pay the defendant’s costs on the indemnity basis;

    (b)In respect of the costs reserved by the order of 22 November 2024, the plaintiffs should pay the defendant’s costs on the indemnity basis; and

    (c)The plaintiffs pay 75 percent of the defendant’s costs of the proceedings (other than in respect of the separate question hearing) for the period after 18 October 2024 until the remittal of the matter to the Magistrates Court.

    Consideration

16. There are at least two periods of time, or types of events, relevant to this costs order; the reserved costs for the period from 18 October 2024 to 22 November 2024 and the costs of and incidental to the separate question hearing. The defendant refers in written submissions to other costs of the proceedings for the period after 18 October 2024 until the order of remittal, which occurred on 4 April 2025. The defendant does not suggest what those costs might relate to. The plaintiffs do not suggest there are any such costs. Otherwise, the proceeding has been remitted to the Magistrates Court for assessment of damages, and that Court can make whatever orders are appropriate for the remitted proceedings.

17. The starting point is to recognise that costs usually follow the event.[3] Insofar as the separate question hearing is concerned, each side contends that they were successful. While the plaintiffs recognise that they did not wholly succeed, it is argued that they were faced with a complete loss of recovery of any items unless the proceedings were commenced, that they succeeded in respect of some items that were not the subject of the defendant’s offers, that it has not been demonstrated that the hearing was substantially lengthened by the dispute over those items in respect of which they did not succeed and that this is not an instance where costs should be apportioned on a “separate issues” basis.

    [3]Rule 681 of the UCPR.

18. On the other hand, the defendant submits that of the 32 items the subject of the separate question hearing the sixth plaintiff succeeded in respect of only seven of those items and that other two plaintiffs failed entirely in respect of those claims. The defendant also relies upon the various offers, none of which were accepted, to argue the position set out above.

19. The discretion as to the ordering of costs is unfettered but must be exercised judicially. The object of a costs order, whether on the standard or indemnity basis, is not to punish the unsuccessful party, but rather to compensate the successful party for the expense to which they were put and to the extent which is justified in all of the circumstances. There may be many bases for justifying an indemnity costs order, but underlying them must be some “relevant delinquency” on the part of the unsuccessful party.[4] The particular relevant delinquency relied on here by the defendant is the failure to accept any offers that had been made.

    [4]Oshlack v Richmond River Council [1998] 193 CLR 72, per Gaudron and Gummow JJ at [44].

20. The offer of 18 October 2024 did not directly refer to Calderbank, but it did refer to an intent to rely on its terms to seek indemnity costs, if the offer was not accepted.  Insofar as any of the offers raised Calderbank issues, the relevant considerations from the refusal of a Calderbank offer are outlined in Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No. 2).[5]

    The reserved costs for the period 18 October 2024 to 22 November 2024.

    [5][2005] 13 VR 435, [25] cited favourably in J & D Rigging Pty Ltd v Agripower Australia Limited & Ors [2014] QCA 23, [5]-[6].

21. Given the nature of the costs order already made, it is convenient to treat this period as being the costs of an associated with the hearing of 21 November 2024, but limited to those incurred since 18 October 2024.

22. The offer of 18 October 2024 was made prior to the filing of the application that founded the orders. That is, the only proceeding on foot at that time was the whole of the proceeding. Therefore, in order to qualify as an offer to settle under the UCPRs it would have needed to propose a settlement of the proceeding that was on foot. It did not, and it is not submitted to have been made under the UCPRs. It was an offer to settle part of the proceedings only.

23. Similarly, the offer of 14 November 2024 was not made under the UCPRs. It was made after the filing of the application, but it too did not propose a settlement of that application. It proposed orders that substantially resembled those actually made, but which meant that there was still a dispute on foot the subject of the application.

24. The orders of 22 November 2024 substantially favoured the plaintiffs, and the usual rule would result in costs following the event. The main opposition to such an order is that a summary judgment application was unnecessary as the defendant had offered to consent to an order in effectively the same terms as that made. However, that submission overlooks the fact that the plaintiffs still had to bring an application to gain the benefit of the order, whether by consent or not. They should not be deprived of gaining the benefit of the order. Any dispute about the excessiveness of the costs incurred in the circumstances can be raised on an assessment.

25. The defendant has not suggested that costs should be limited to the Magistrates Court scale and, in the absence of full argument on the issue, I am not inclined to limit them to that scale.

    The costs of and incidental to the separate question hearing.

26. The separate question hearing was, at least after 22 November 2024 a separate head of controversy or “unit of litigation”.[6] Although the issues on the separate question hearing were part of the initial overall controversy, the other controversy or controversies, apart from the calculation of damages, had been resolved by the orders of 22 November 2024, in a manner broadly consistent with the defendant’s updated offer of 24 October 2024. What remained was a distinct dispute over 32 items all of which were of comparatively modest value.[7]

    [6]Speets Investment Pty Ltd v Bencol Pty Ltd (No. 2) [2021] QCA 39, [15].

    [7]One item, the thermal monocular, was initially thought to be valued at about $2500, but considerable doubt was cast on that valuation by a retailer called for another reason in the hearing.

27. The plaintiffs (or more accurately by this stage, the fourth, fifth and sixth plaintiffs) sought orders in respect of 32 items. They succeeded on seven, all of which are obviously of particularly modest value, both singularly and collectively. On that basis alone, in my view, the defendant substantially succeeded on the separate question hearing.

28. It can be accepted that the plaintiffs had to pursue the separate question hearing to obtain the benefit of the order for the seven items, but they did so for apparently little eventual financial benefit. While they were entitled to pursue it, that came with risks given the likely costs involved in a hearing held over two days. In the end result there was little benefit in the orders made for the plaintiffs, but greater benefit for the defendant. In my view, it would be unfair to deprive the defendant of her costs in those circumstances.

29. The seven items which the plaintiff’s succeeded on in the separate question hearing did not precisely align with the items referred to in the offer of 22 November 2024, but there was some overlap. In any event, I do not consider it profitable to undertake a minute analysis of what was offered and what was the subject of the orders.  The list of disputed items changed regularly, and at relatively short notice throughout the short life of the proceedings in this Court. One item was in fact abandoned by the sixth plaintiff in evidence in chief, apparently without notice to the defendant. Whether that is in fact the case or not, it was not the subject of abandonment in the course of the plaintiffs’ opening statement. All items were of relatively meagre value, although some were more valuable than others, and I accept that a few may have had sentimental value.

30. In those circumstances, and notwithstanding the robust criticism of the reasonableness of the offer,[8] I accept that the defendant’s offer of 22 November 2024 was in fact reasonable and its refusal, together with the determined pursuit of the matter for little apparent gain warrants departure from the usual rule as to costs.

    [8]Plaintiffs written submissions on costs at paragraph 27.

31. Applying the criteria from Hazeldene’s Chicken Farm,[9] The offer was open until 25 November 2024, a period of three full days. This was sufficiently long for a considered position to be taken by the plaintiffs, especially given the looming hearing and the history of previous offers having been made and no doubt considered. It was sufficiently clear in its terms and involved a compromise on the part of the defendant. There must have been an awareness that the plaintiffs were unlikely to succeed in respect of all the items, and the reasons suggested as to why the offer should be accepted were both reasonable and prescient.

    [9]supra at [20] and [25].

32. The defendant is entitled to the costs of the separate question hearing on the indemnity basis on and from 22 November 2024.

    Other costs.

33. As earlier noted, the defendant seeks an order for costs not covered by the two above orders, but she has not identified what those costs might relate to. It is also not clear why they should be apportioned 75%/25% in the defendant’s favour, as she submits. The plaintiffs do not suggest there are any such costs.

34. The only apparent costs that might arise and not be covered by the two dispositions already made would be those of the separate question hearing incurred before 22 November 2024. For the reasons outlined above, they should be paid in favour of the defendant given her success in that hearing, but on the standard basis given they were incurred before the Calderbank offer was made and refused.

35. Other costs, that is those not captured by the orders of 22 November 2024 and these orders and reasons, have not been identified. Not only is there no utility in making such an order, I cannot appreciate what order should be made. I decline to make any further order.