Kasai v Logan

[2004] QDC 132

DISTRICT COURT OF QUEENSLAND

CITATION:

Kasai v Logan [2004] QDC 132

PARTIES:

GEN KASAI

Appellant/Plaintiff

v

LACHLAN WARWICK SEYMOUR LOGAN

Respondent/Defendant

FILE NO/S:

Appeal 3838/2003; Southport M243/02

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Southport

DELIVERED ON:

28 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

14 May 2004

JUDGE:

McGill DCJ

ORDER:

Appeal allowed, judgment given by the magistrate on 23 October 2003 set aside, and substitute judgment that the defendant pay the plaintiff $9,808.10.  Respondent to pay appellant’s costs of the appeal to be assessed.

CATCHWORDS:

COSTS – Offers to Settle – defendant’s offer without costs – whether later judgment not more favourable to the plaintiff than offer – basis of comparison.

COSTS – Scale – Magistrates Court – standard costs – amount recovered includes voluntary payment during action towards liability.

UCPR rr 361(1); 690(3).

Bluehaven Transport Pty Ltd v Deputy Commissioner of Taxation [2000] QSC 268 – applied.

COUNSEL:

L R Smith for the appellant
S J Pointing for the respondent

SOLICITORS:

Harvey & Associates for the appellant
Universal Legal Recoveries lawyers for the respondent

1. On 19 August 2002 a collision occurred between the plaintiff’s vehicle and the defendant’s vehicle in which the plaintiff’s vehicle was damaged.  The collision was the fault of the defendant.  The plaintiff’s vehicle required repairs, and the plaintiff incurred some taxi costs, and the costs of a hire car, to prevent interference with his work as a photographer.  The plaintiff made a claim on the defendant’s insurer, initially with the assistance of recovery agents.  The claim was not settled, solicitors were engaged and on 22 January 2003 they filed a claim in the Southport Registry of the Magistrates Court seeking damages in the sum of $7,396.93.  Although the action was defended only in relation to quantum, it did not settle until the day of trial, and then not completely.  The parties settled everything except costs, which were left to the magistrate to decide.

1. This was not entirely straightforward, because there had been some efforts on the part of the defendant’s insurer to settle the claim, and there was some dispute as to the effect on costs of what had occurred. The defendant claimed that the final settlement figure was not as favourable as what was offered to the plaintiff before the action commenced, and was also not more favourable to the plaintiff than an offer of settlement made under the UCPR after the action commenced. The magistrate declined to mitigate costs on the former ground, but upheld the latter contention, and gave judgment to the plaintiff for the agreed amount of $5,600 plus standard costs up to the date of offer, less standard costs to the defendant thereafter. By a notice of appeal filed 17 November 2003 the plaintiff appealed against that order. On the hearing of the appeal, the defendant’s counsel contended that the order made was if anything too generous to the plaintiff.

Pre-litigation offers

1. The parties put before the magistrate correspondence which revealed what had occurred prior to the commencement…