Kurk v Miller (No. 2)

[2014] QDC 135

DISTRICT COURT OF QUEENSLAND

CITATION:

Kurk v Miller & Anor (No. 2) [2014] QDC 135

PARTIES:

HELEN LOUISE KURK
(Plaintiff)

v

JOHN BARRIE MILLER
(First Defendant)

and

SUNCORP METWAY INSURANCE LIMITED
(Second Defendant)

FILE NO/S:

D146 of 2013

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

13 June 2014

DELIVERED AT:

Beenleigh

HEARING DATE:

On the papers

JUDGE:

McGinness DCJ

ORDER:

The second defendant must play the plaintiff’s costs of these proceedings assessed on the indemnity basis.

CATCHWORDS:

CIVIL – COSTS – INDEMNITY COSTS – OFFER TO SETTLE – where the plaintiff made an offer to settle under Chapter 9 Part V of the Uniform Civil Procedure Rules 1999 (Qld) – where the second defendant did not accept that offer – where the plaintiff’s case did not substantially change after that offer was made – where the judgment was no less favourable to the plaintiff than the terms of the offer to settle – whether the second defendant should pay the plaintiff’s costs on the indemnity basis.

CASES:

Uniform Civil Procedure Rules 1999 (Qld), rr 360 & 354.
Fail v Hutton & Anor [2003] QSC 291.

COUNSEL:

M Pope for the Plaintiff
F H Dawson for Second Defendant

SOLICITORS:

Derek Geddes Solicitors for the Plaintiff
Bray Lawyers for the Second Defendant

1. On 16 May 2014, after a trial where the only issue was quantum, I gave judgment for the plaintiff in the sum of $83,971.28. I have received written submissions from both parties in relation to an order for costs. The parties agree to the application being determined on the papers.

1. The plaintiff seeks an order for costs on the indemnity basis pursuant to r360 of the Uniform Civil Proceedure Rules 1999 (Qld) (“UCPR”). 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 less favourable than the offer to settle; and

(b)   the court is satisfied that the plaintiff was at all material times willing and able to carry out what was proposed in the offer;

the court must order the defendant to pay the plaintiff's costs calculated on the indemnity basis unless the defendant shows another order for costs is appropriate in the circumstances.

(2)   If the plaintiff makes more than 1 offer satisfying subrule (1), the first of those offers is taken to be the only offer for this rule.

1. The plaintiff submits the defendants should pay indemnity costs because the judgment sum exceeds an offer made by the plaintiff on 31 October 2013 to settle the action for $80,000 plus standard costs. The offer was made pursuant to Chapter 9 Part V of the UCPR.

1. The defendants submit that the appropriate order would be that the defendants pay costs on the standard basis and in accordance with the Magistrates Scale of fees. The defendants submit that, although the judgment amount exceeds the offer, and the discretion under r 360 is enlivened,…