Huni v Huni
[2014] QDC 296
•19 December 2014
DISTRICT COURT OF QUEENSLAND
CITATION:
Huni v Huni & Anor [2014] QDC 296
PARTIES:
GEORGE HUNI
(plaintiff)v
LOUMAILE HUNI
(first defendant)and
RACQ INSURANCE LIMITED (ACN 009704152)
(second defendant)FILE NO/S:
BD3756/13
DIVISION:
Civil
PROCEEDING:
Application for costs
ORIGINATING COURT:
District Court of Queensland
DELIVERED ON:
19 December 2014
DELIVERED AT:
Brisbane
HEARING DATE:
Written submissions to 19 December 2014
JUDGE:
Andrews SC DCJ
ORDER:
The second defendant pay the plaintiff’s costs of the proceeding fixed in the sum of $3,040.
CATCHWORDS:
COSTS – EVIDENCE – where offer to settle expressed to be “without prejudice” – where not expressed to be “without prejudice save as to costs” – where party objected to reliance on “without prejudice” offer – whether offer admissible on the issue of costs
Cross on Evidence, 8th ed [25360]
Cutts v Head [1984] Ch 290
COUNSEL:
Horvarth for the plaintiff
O’Driscoll for the defendants
SOLICITORS:
Quinn and Scattini Lawyers for the plaintiff
Cooper Grace Ward for the defendants
On 5 December 2014 I ordered in this proceeding that there be judgment for the plaintiff against the second defendant in the sum of $58,209.30 with costs reserved.
Both sides accept that it is appropriate to order that the second defendant pay the plaintiff’s costs fixed at $3,040.
The issue is whether there should be a further order that the plaintiff pay the second defendant’s costs of the proceeding after 9 April 2014. A preliminary issue is whether the defendants may rely on a without prejudice offer made on 9 April 2014 by the second defendant’s solicitors to the plaintiff’s solicitors being an offer to settle in the amount of $61,000 inclusive of $nil for rehabilitation payments plus standard costs and outlays to be agreed or assessed. The offer was made “without prejudice” but it was not expressed to be made “without prejudice save as to costs”.
The plaintiff submits that it therefore cannot be relied on for costs and refers to Cross on Evidence, 8th ed [25360] which refers to Cutts v Head [1984] Ch 290 at 305.
I accept that those authorities support the submission. The defendants do not make submissions in reply and I take that to mean they do not contest the correctness of the plaintiff’s submission.
The defendants are not able to rely upon the negotiation because it was expressed to be “without prejudice”. The exception to that rule which arises where a negotiation is expressed to be “without prejudice save as to costs” does not arise here because the second defendant’s solicitor did not expressly negotiate on that basis and because it was not to be implied from the facts of this case that the negotiation could be disclosed on an argument about costs.
I uphold the plaintiff’s objection. I do not have regard to the telephone negotiation of 9 April 2014.
That offer of 9 April 2014 was the only basis upon which the defendants applied for an order that the plaintiff pay the second defendant’s costs after 9 April 2014.
In that case, only the uncontentious costs are appropriate.
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