Kenny v Eyears

[2004] QSC 59

SUPREME COURT OF QUEENSLAND

CITATION:

Kenny & Anor v Eyears & Anor [2004] QSC 059

PARTIES:

DEBORAH JOANNE KENNY
(first plaintiff)
JOHN ROBERT KENNY
(second plaintiff)
v
JAY EARLE EYEARS
(first defendant)
TRANSPORT ACCIDENT COMMISSION
(second defendant)

FILE NO/S:

SC 9334/02

DIVISION:

Trial Division

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

19 March 2004

DELIVERED AT:

Brisbane

JUDGE:

Philippides J

ORDER:

1.  The second plaintiff pay the second defendant’s costs of and incidental to the action on a standard basis.

2.    The second defendant pay the first plaintiff’s costs of and incidental to the action to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – COSTS – effect of mandatory final offer made under  Motor Accident Insurance Act 1994 to the first plaintiff by the second defendant – where first plaintiff’s claim above $50,000 and award of $100,242 made – where award less than amount of mandatory final offer

COSTS – SCALE – where amount awarded within monetary jurisdiction of District Court – whether costs should be on Supreme or District Court scale

Motor Accident Insurance Act 1994, s 51C, s 55F
Uniform Civil Procedure Rules 1999 (UCPR), r 690(5), r 698

Quality Corp (Aust) Pty Ltd & Ors v Millford Builders (Vic) Pty Ltd & Ors [2003] QCA 550

COUNSEL:

R Stenson and K Jackson for the plaintiffs
M Grant-Taylor and D Schneidenin for the defendants

SOLICITORS:

Murphy Schmidt for the plaintiffs
Quinlan Miller & Treston for the defendants

PHILIPPIDES J: 

1. On 23 December 2003, judgment was given in favour of the first plaintiff in the sum of $100,242. The second plaintiff however received no award for damages as a result of s 55C(1)(b) of the Motor Accident Insurance Act 1994 (“the Act”). It now remains to deal with the issue of costs.

1. As regards the second plaintiff, I order that the second plaintiff pay the second defendant’s costs of the action on a standard basis.

Mandatory Final Offer made to the first plaintiff

1. As regards the first plaintiff, the following orders are sought:

(a)        An order that the first plaintiff’s costs be paid by the second defendant on a standard basis;

(b)        An order that those costs be assessed on the Supreme Court Scale;

(c) A certificate for an increase of 30% of the solicitors’ costs on the standard basis pursuant to r 690(5) of the Uniform Civil Procedure Rules 1999 (UCPR); and

(d)        That the court grant a certificate for two counsel or otherwise, if the first plaintiff’s costs are to be limited to the District Court Scale, pursuant to item 83 of the District Court Scale of Fees.

1. The second defendant contended that it ought only be ordered to pay the first plaintiff’s costs on a standard basis up to and including 30 August 2002, the date when the second defendant’s mandatory final offer made under s 51C of the Act expired. It was submitted that thereafter, the first plaintiff ought to be ordered to pay the second defendant’s costs on a…