Hiscox v Woods and GIO General Ltd - [2002] QSC 64

SUPREME COURT OF QUEENSLAND

[2002] QSC 064
File No 6256 of 1999

BETWEEN:

STEPHEN HISCOX

Plaintiff

AND:

MADELLINE FRANCIS WOODS

First Defendant

AND:

GIO GENERAL LIMITED

(ACN 002 861 583)

Second Defendant

MOYNIHAN J – ORDER FOR COSTS

DELIVERED ON:	25 March 2002
HEARING DATE/S:	19-21 September 2001
ORDER:	Defendant pay plaintiff’s costs on an indemnity basis
CATCHWORDS:	COSTS - where plaintiff seeks costs on an indemnity basis – UCPR section 360 – where plaintiff made an offer of settlement judgement for plaintiff not less favourable than that offer – whether defendant shows another costs order is more appropriate – whether defendant should pay plaintiff’s costs on an indemnity basis. John Goss Projects Pty Ltd v Theiss Watkins White Constructions Ltd (in liquidation) 1995 (2)QdR 591 Duncan & Weller v Mendelson 1989 VR 396
COUNSEL:	C Newton for the plaintiff. R Morton for the first and second defendants.
SOLICITORS:	Carter Capner Lawyers for the plaintiff. McInnes Wilson Lawyers for the defendants.

On 16 November 2001 the plaintiff obtained judgement in an amount of $522,706.92. Directions were given for the exchange of submissions on the question of costs. The plaintiff seeks costs on an indemnity basis. The defendant counters for their assessment on a standard basis.

The case was a personal injury case arising out of a motor vehicle accident.

The trial was conducted essentially on the basis that the plaintiff had overstated the nature and extent of his disabilities and their consequences. The defendant relied on video surveillance material.

On 16 June 2000 the plaintiff delivered an offer to settle the action, the relevant terms of the offer are:

“The plaintiff offers the sum of $275,000 (two hundred and seventy five thousand) plus party/party costs and outlays on the Supreme Court scale clear of all statutory refunds (including workcover) of the action to the date of acceptance of this offer in satisfaction of the plaintiff’s claims”.

The offer was expressed to be open for acceptance for fourteen days. It was not accepted and lapsed. The defendant did not make a counter offer or itself make a formal offer to settle.

Taking into account statutory refunds the plaintiffs offer was effectively:

· Settlement sum $275,000.00

· Workcover refund $51,163.52

· Centrelink refund $0.00

· HIC refund (approximately) $1,137.20

· Costs

It may be noted that the Uniform Civil Procedure Rules, which came into force on 1 July 1999 effectively, abolished the taxation of costs on a party and party basis and substituted an assessment of costs on a standard basis. No point was taken about that aspect of the offer and nothing appears to turn on it.

It follows that in terms of UCPR360 (1) the plaintiff made an offer to settle which was not accepted and obtained a judgement not less favourable than that offer. There is no occasion to doubt that in terms of UCPR360 (1)(b) that the plaintiff was at all material times willing and able to carry out what was proposed in the offer. In those circumstances…

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: [2002] QSC 64
Decision Date: 25 March 2002

CaseChat Overview and Summary

The case before the court involved a dispute between Hiscox, the plaintiff, and Woods and GIO General Ltd, the defendants. The plaintiff sought an indemnity costs order, relying on section 360 of the Uniform Civil Procedure Rules (UCPR). The plaintiff made an offer of settlement that was not accepted by the defendants, and subsequently obtained a judgement that was not less favourable than the offer. The defendants argued that another costs order was more appropriate than an indemnity costs order, and that the plaintiff should not be awarded costs on an indemnity basis.

The legal issues before the court were whether the plaintiff's offer of settlement constituted an offer of compromise, and if so, whether the plaintiff was entitled to an indemnity costs order. The court also considered whether the defendants had demonstrated that another costs order was more appropriate than an indemnity costs order. The court noted that an offer of settlement made before proceedings are instituted or before a claim is amended is an offer of compromise, and that such an offer can entitle the plaintiff to an indemnity costs order if the judgement is not less favourable than the offer.

In its reasoning, the court found that the plaintiff's offer of settlement was indeed an offer of compromise, and that the plaintiff was entitled to an indemnity costs order as the judgement was not less favourable than the offer. The court rejected the defendants' argument that another costs order was more appropriate, and held that the defendants should pay the plaintiff's costs on an indemnity basis. The court noted that the defendants had not demonstrated that another costs order was more appropriate, and that the plaintiff's offer of compromise was a significant factor in its decision.

The final orders of the court were that the defendants pay the plaintiff's costs on an indemnity basis. The court held that the plaintiff was entitled to an indemnity costs order, and that the defendants had not demonstrated that another costs order was more appropriate. The court's decision reinforces the importance of considering offers of compromise when determining costs orders in litigation.

Orders

Orders of the court

Defendant pay plaintiff’s costs on an indemnity basis

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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