Hunt v Lemura - [2012] QSC 7

SUPREME COURT OF QUEENSLAND

CITATION:

Hunt v Lemura & Anor [2012] QSC 7

PARTIES:

CARLA LOUISE HUNT
(Plaintiff)
v
CARL SEBASTIAN LEMURA
(First Defendant)
AUSTRALIAN ASSOCIATED MOTOR INSURERS (ACN 004 791 744)
(Second Defendant)

FILE NO/S:

564 of 2010

DIVISION:

Trial

PROCEEDING:

Costs Order

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

31 January 2012

DELIVERED AT:

Cairns

HEARING DATE:

14 December 2011

JUDGE:

Henry J

ORDER:

The second defendant will pay the plaintiff’s costs of this proceeding on the standard basis on the District Court scale up to and including 28 October 2010.1.

The plaintiff will pay the second defendant’s costs of this proceeding on the standard basis on the District Court scale from 29 October 2010.2.

The second defendant will pay the plaintiff’s reserved costs of the application filed on 27 July 2010 on the standard basis on the District Court scale.3.

The plaintiff will pay the second defendant’s reserved costs of the application filed on 5 April 2011 on the standard basis on the District Court scale.4.

The second defendant will pay all statutory refunds from the judgment sum of $140,594.32 within 28 days of all clearances having been received.5.

Payment of the balance of the judgment sum is stayed until such time as the parties have resolved the issue of costs by agreement or court order.6.

Each party has liberty to apply on two clear business days notice in writing.7.

CATCHWORDS:

COSTS – WHERE OFFER OF COMPROMISE MADE – where the award or damages at trial was less than the mandatory final offer made under s 51C of the Motor Accidents Insurance Act 1994 (Qld) – where a subsequent offer was made under Chapter 9 Part 5 of the Uniform Civil Procedure Rules1999 (Qld) which was also in excess of the award of damages at trial– whether the plaintiff should pay the defendants’ costs from the date of the expiry of the first offer or the second

COSTS – WHAT SCALE – where the posting and the filing dates fell either side of changes to the jurisdictional limits – whether the costs should be measured under the old jurisdictional limits

Acts Interpretation Act 1954 (Qld) s14A
Motor Accidents Insurance Act 1994 (Qld) ss 3(e), 51C
Uniform Civil Procedure Rules1999 (Qld) r 361

CIC Insurance Limited v Bankstown Football Club Limited (1995) 187 CLR 384
Lawes v Nominal Defendant [2007] QSC 103
Monement v Faux & Anor [2005] QSC 342
Reardon-Smith v Torres-Farr & Anor [2007] QSC 8
Xu v Thurgood & Anor (No 2) [2008] QSC 319
Zevering v Callaghan [2011] QCA 180

COUNSEL:

A R Philp SC for the plaintiff
G Crow SC for the defendants

SOLICITORS:

Roati & Firth Solicitors for the plaintiff
Miller Harris Lawyers for the defendant

There are several matters arising for determination out of the submissions as to costs in this matter.

From what date should the plaintiff bear the defendants’ costs?

The judgment sum of $140,594.32, ordered on 2 December 2011,…

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 Hunt v Lemura

Details

AGLC: Hunt v Lemura [2012] QSC 7
Case: [2012] QSC 7
Decision Date: 31 January 2012

CaseChat Overview and Summary

In Hunt v Lemura, the plaintiff, Hunt, sued the defendants, Lemura, for damages related to a motor accident. The dispute centered around the costs incurred by both parties in the litigation process, specifically regarding the timing of offers of compromise and the applicable jurisdictional limits for costs. The matter was heard in the Queensland District Court.

The court needed to decide whether the plaintiff should bear the defendants' costs from the date of the expiry of the first offer made under the Motor Accidents Insurance Act 1994 (Qld) or from the second offer made under the Uniform Civil Procedure Rules 1999 (Qld). Additionally, the court had to determine whether the costs should be measured under the old jurisdictional limits or the new ones, given that the posting and filing dates fell on either side of the changes.

The court held that the plaintiff was not liable for the defendants' costs from the expiry of the first offer, as the second offer was superior. The court ruled that the costs should be assessed under the new jurisdictional limits, as the posting date fell within the new limits. The court ordered that the second defendant would pay the plaintiff's costs up to 28 October 2010, and the plaintiff would pay the second defendant's costs from 29 October 2010. The second defendant was also ordered to pay all statutory refunds from the judgment sum within 28 days of all clearances being received. Payment of the balance of the judgment sum was stayed until the parties resolved the issue of costs. Each party retained the right to apply on two clear business days' notice in writing.

Orders

Orders of the court

The second defendant will pay the plaintiff’s costs of this proceeding on the standard basis on the District Court scale up to and including 28 October 2010.1.

The plaintiff will pay the second defendant’s costs of this proceeding on the standard basis on the District Court scale from 29 October 2010.2.

The second defendant will pay the plaintiff’s reserved costs of the application filed on 27 July 2010 on the standard basis on the District Court scale.3.

The plaintiff will pay the second defendant’s reserved costs of the application filed on 5 April 2011 on the standard basis on the District Court scale.4.

The second defendant will pay all statutory refunds from the judgment sum of $140,594.32 within 28 days of all clearances having been received.5.

Payment of the balance of the judgment sum is stayed until such time as the parties have resolved the issue of costs by agreement or court order.6.

Each party has liberty to apply on two clear business days notice in writing.7.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hunt v Lemura & Anor [2012] QSC 7
PARTIES:	CARLA LOUISE HUNT (Plaintiff) v CARL SEBASTIAN LEMURA (First Defendant) AUSTRALIAN ASSOCIATED MOTOR INSURERS (ACN 004 791 744) (Second Defendant)
FILE NO/S:	564 of 2010
DIVISION:	Trial
PROCEEDING:	Costs Order
ORIGINATING COURT:	Supreme Court, Cairns
DELIVERED ON:	31 January 2012
DELIVERED AT:	Cairns
HEARING DATE:	14 December 2011
JUDGE:	Henry J
ORDER:	The second defendant will pay the plaintiff’s costs of this proceeding on the standard basis on the District Court scale up to and including 28 October 2010.1. The plaintiff will pay the second defendant’s costs of this proceeding on the standard basis on the District Court scale from 29 October 2010.2. The second defendant will pay the plaintiff’s reserved costs of the application filed on 27 July 2010 on the standard basis on the District Court scale.3. The plaintiff will pay the second defendant’s reserved costs of the application filed on 5 April 2011 on the standard basis on the District Court scale.4. The second defendant will pay all statutory refunds from the judgment sum of $140,594.32 within 28 days of all clearances having been received.5. Payment of the balance of the judgment sum is stayed until such time as the parties have resolved the issue of costs by agreement or court order.6. Each party has liberty to apply on two clear business days notice in writing.7.
CATCHWORDS:	COSTS – WHERE OFFER OF COMPROMISE MADE – where the award or damages at trial was less than the mandatory final offer made under s 51C of the Motor Accidents Insurance Act 1994 (Qld) – where a subsequent offer was made under Chapter 9 Part 5 of the Uniform Civil Procedure Rules1999 (Qld) which was also in excess of the award of damages at trial– whether the plaintiff should pay the defendants’ costs from the date of the expiry of the first offer or the second COSTS – WHAT SCALE – where the posting and the filing dates fell either side of changes to the jurisdictional limits – whether the costs should be measured under the old jurisdictional limits Acts Interpretation Act 1954 (Qld) s14A Motor Accidents Insurance Act 1994 (Qld) ss 3(e), 51C Uniform Civil Procedure Rules1999 (Qld) r 361 CIC Insurance Limited v Bankstown Football Club Limited (1995) 187 CLR 384 Lawes v Nominal Defendant [2007] QSC 103 Monement v Faux & Anor [2005] QSC 342 Reardon-Smith v Torres-Farr & Anor [2007] QSC 8 Xu v Thurgood & Anor (No 2) [2008] QSC 319 Zevering v Callaghan [2011] QCA 180
COUNSEL:	A R Philp SC for the plaintiff G Crow SC for the defendants
SOLICITORS:	Roati & Firth Solicitors for the plaintiff Miller Harris Lawyers for the defendant