Lawes v Nominal Defendant

Case [2007] QSC 103

SUPREME COURT OF QUEENSLAND

CITATION:

Lawes v Nominal Defendant [2007] QSC 103

PARTIES:

RICKY LEE LAWES
(applicant)
v
NOMINAL DEFENDANT
(respondent)

FILE NO/S:

BS 1930 of 2006

DIVISION:

Trial Division

PROCEEDING:

Costs Order

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

3 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

5-7 March 2007
Further submissions received 3 May 2007

JUDGE:

Byrne J

ORDER:

That the application for indemnity costs is refused and the costs be awarded on the Supreme Court Scale

CATCHWORDS:

PROCEDURE  –  COSTS  –  SCALE OF COSTS  –  DISCRETION TO VARY SCALE  –  whether costs should be awarded on the District Court Scale pursuant to the Uniform Civil Procedure Rules  –  whether the circumstances justify the exercise of discretion to award costs on the Supreme Court Scale

PROCEDURE  –  COSTS  –  DEPARTING FROM THE GENERAL RULE  –  OTHER CASES  –  the plaintiff made a mandatory final offer pursuant to the Motor Accident Insurance Act before the litigation commenced  –  the judgment sum awarded was more favourable than his offer  –  whether there were sufficient circumstances to justify departing from the ordinary basis of a costs assessment  –  whether the defendant was imprudent or unreasonable by not accepting the mandatory final offer  –  whether costs should be awarded on an indemnity basis

Uniform Civil Procedure Rules 1999, r 360(1), r 698(1), r 698(3)
Motor Accident Insurance Act 1994, s 51C(2),s 51C(1), s 55F(3)(b)(i), s 55F(3)(b)(ii)

Balderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2006] NSWSC 583, cited
Brymount Pty Ltd v Cummins (No 2) [2005] NSWCA 69, cited
Crump v Equine Nutrition Systems Pty Ltd (No 2) [2007] NSWSC 25, cited
Devprov v Seamark Pty Ltd [2007] QSC 31, cited
Food Improvers Pty Ltd v BGR Corporation Pty Ltd (No 4) (2007) 25 ACLC 177, cited
Fordyce v Fordham (No 2) [2006] NSWCA 362, cited
Gove v Black [2006] WASC 298, cited
Gretton v The Commonwealth of Australia [2007] NSWSC 149, cited
Grice v The State of Queensland [2005] QCA 298, cited
Monement v Faux [2006] 2 Qd R 392, cited
Westpac Banking Corporation v Commissioner of State Revenue [2004] 55 ATR 72, cited

COUNSEL:

R J Douglas SC, with him P B de Plater, for the plaintiff
R B Dickson for the defendant

SOLICITORS:

McNamara Garrahy Lawyers for the plaintiff
Broadley Rees Lawyers for the defendant

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

BYRNE J

No B/S 1930 of 2006

RICKY LEE LAWES Plaintiff

and
NOMINAL DEFENDANT Defendant

BRISBANE

..DATE 03/05/2007

JUDGMENT

HIS HONOUR:  The issue of costs arises. 

The Nominal Defendant does not resist an order for costs assessed on the standard basis, but does rely on rule 698(3) to propose that the costs be on the District Court scale, the judgment sum having been $212,000.

The plaintiff, however, seeks indemnity costs on the Supreme Court scale, relying on the circumstance that the judgment sum exceeds his mandatory final offer of $125,000 made pursuant to s.51C(2) of the Motor Accident Insurance…

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AGLC
Lawes v Nominal Defendant [2007] QSC 103
Case
[2007] QSC 103
Decision Date

CaseChat Overview and Summary

The case of Lawes v Nominal Defendant was before the Supreme Court, where the plaintiff sought costs awarded on the Supreme Court Scale, arguing that the circumstances justified such a departure from the general rule. The defendant contested the application, asserting that costs should be awarded on the District Court Scale as per the Uniform Civil Procedure Rules. A critical aspect of the case was the plaintiff's mandatory final offer made under the Motor Accident Insurance Act prior to the litigation, which was less favourable than the judgment sum awarded. The plaintiff contended that the defendant's refusal to accept the offer and the resulting more favourable judgment warranted an indemnity costs order.

The court had to determine whether the circumstances warranted exercising the discretion to award costs on the Supreme Court Scale. Additionally, the court considered whether the plaintiff's final offer and the defendant's refusal to accept it constituted sufficient grounds for departing from the standard costs assessment and awarding indemnity costs. The court had to assess whether the defendant's actions were imprudent or unreasonable, thereby justifying an indemnity costs order.

The court concluded that the circumstances did not justify awarding costs on the Supreme Court Scale. The court found that while the judgment sum was more favourable than the plaintiff's final offer, this alone did not constitute sufficient grounds to depart from the general rule. The court held that there was no evidence of the defendant's actions being imprudent or unreasonable to warrant an indemnity costs order. Consequently, the court ruled that the application for indemnity costs was to be refused, and costs should be awarded on the Supreme Court Scale.

In summary, the court denied the plaintiff's application for indemnity costs and ordered that costs be awarded on the Supreme Court Scale. The court found no justification for departing from the general rule of costs assessment based on the facts presented.

Orders

Orders of the court

That the application for indemnity costs is refused and the costs be awarded on the Supreme Court Scale

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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