Jones v Millward

[2005] QCA 76

SUPREME COURT OF QUEENSLAND

CITATION:

Jones & Anor v Millward & Anor [2005] QCA 76

PARTIES:

RICHARD LAURENCE JONES and ELIZABETH ANN JONES
(plaintiffs/appellants)
v

MARK VINCENT MILLWARD and ROSEMARY JANE LEA
(defendants/respondents)

FILE NO/S:

CA No 7917 of 2004

SC No 563 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED EX TEMPORE ON:

21 March 2005

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2005

JUDGES:

McMurdo P, Jerrard JA and Holmes J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs to be assessed

CATCHWORDS:

PROCEDURE – COSTS – APPEALS AS TO COSTS – MISTAKE OF LAW OR FACT – where specific performance granted by trial judge– where plaintiffs made offer before trial to defendants to specifically perform the contract the subject of the action and pay the plaintiff’s costs on a standard basis – where successful plaintiffs sought indemnity costs on the basis that their offer constituted an offer to settle under r 360 Uniform Civil Procedure Rules 1999 (Qld) - whether an offer to accept the whole of the relief sought in a claim for specific performance is an offer to settle for the purposes of r 360 Uniform Civil Procedure Rules 1999 (Qld)

Uniform Civil Procedure Rules 1999 (Qld), r 5(1), r 360

Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 118 ALR 248, considered
Hobartville Stud v Union Insurance Co Ltd (1991) 25 NSWLR 358, considered
Mitchell v Pacific Dawn Pty Ltd [2003] QSC 179; Ambrose J, SC No 3872 of 2001, 12 June 2003, applied

Tickell v Trifleska Pty Ltd (1991) NSWLR 353, considered

COUNSEL:

Mr M E Pope for the appellants

Mr A Lyons for the respondents

SOLICITORS:

Hillhouse Burrough McKeown as town agents for Bruce Gillan for the appellants
Bennet & Philp as town agents for Vince Martin & Co for the respondents

HOLMES J:  This is an appeal by leave already granted from a costs order made by Jones J after giving judgment for the plaintiff appellants in a civil trial.  The plaintiffs had been successful in obtaining a declaration that the defendants were bound specifically to perform as purchasers under a contract for the sale of land.  The plaintiffs had before trial made an offer in these terms:  that the defendant specifically perform the contract for the sale of land, which was identified and was the subject of the action, and that the defendants pay the plaintiffs' costs of and incidental to the action on a standard basis.

On the basis that the judgment obtained was not less favourable than that offer, the plaintiffs sought the payment of costs on an indemnity basis, pursuant to rule 360 of the Uniform Civil Procedure Rules 1999. Rule 360 provides:

(1)  If -

(a) the plaintiff makes an offer to settle that is

not accepted by the defendant and the plaintiff obtains a judgment no…