Lewis v Lewis (No 2) - [2022] QSC 219

SUPREME COURT OF QUEENSLAND

CITATION:

Lewis v Lewis (No 2) [2022] QSC 219

PARTIES:

Richard LEWIS

(Plaintiff)

v

Robert LEWIS

(Defendant)

FILE NO/S:

95/19

DIVISION:

Trial Division

PROCEEDING:

Hearing as to Costs

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

13 October 2022

DELIVERED AT:

Brisbane

HEARING DATE:

6 October 2022

JUDGE:

Crowley J

ORDER:

1.   The Defendant is to pay the Plaintiff’s costs of the proceedings, as agreed or assessed:

a.   on the standard basis until 13 June 2019; and thereafter

b.   on an indemnity basis from 14 June 2019.

CATCHWORDS:

COSTS – INDEMNITY COSTS – OFFERS TO SETTLE –where the proceedings involved a claim by the plaintiff and a counterclaim by the defendant – where the plaintiff was successful on the whole of the proceedings (the claim and the counterclaim) – whether the defendant should be ordered to pay the plaintiff’s costs of the whole of the proceedings (the claim and the counterclaim) on an indemnity basis under r 360

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – FORM OF CALDERBANK LETTER – where the plaintiff sent a letter to the defendant making an offer to settle the proceedings – where the letter stated that the offer was made pursuant to r 353 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) – where the letter stated that, alternatively, it was a Calderbank letter – where the letter stated that, if the defendant failed to accept the offer, the plaintiff intended to rely on the letter on the question of costs – where the letter did not state in express terms that the plaintiff would seek indemnity costs in the event that the offer was not accepted – where the defendant rejected the offer – where the defendant subsequently obtained an order no less favourable than the offer – where the plaintiff seeks costs on an indemnity basis – whether the offer was made pursuant to UCPR r 353 – whether the offer was a Calderbank offer – whether the defendant should be ordered to pay the plaintiff’s costs on an indemnity basis

Uniform Civil Procedure Rules 1999 (Qld), r 353, r 360, r 361

Australia & New Zealand Banking Group Ltd v Alirezai (No 2) [2002] QSC 205, cited
Calderbank v Calderbank [1976] Fam 93, cited

Wiggins Island Coal Export Terminal Pty Limited v Civil Mining & Construction Pty Ltd (2021) 7 QR 1; [2021] QCA 8, applied

COUNSEL: D P de Jersey KC and J D Byrnes for the plaintiff
M D White for the defendant

SOLICITORS:

Frews Solicitors for the plaintiff

Butler McDermott Lawyers for the defendant

Introduction

On 30 September 2022, after the trial of these proceedings, I delivered my judgment in the matter of Lewis v Lewis [2022] QSC 208. These reasons are to be read in conjunction with the reasons set out in that judgment.
I dismissed Robert’s counterclaim,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lewis v Lewis (No 2)

Details

AGLC: Lewis v Lewis (No 2) [2022] QSC 219
Case: [2022] QSC 219
Decision Date: 13 October 2022

CaseChat Overview and Summary

The case of Lewis v Lewis (No 2) involved a dispute between the plaintiffs, Richard and Robert, over the distribution of funds held in a solicitors’ trust account, which were proceeds from the sale of assets of a partnership. Richard initiated the proceedings seeking an equal distribution of the funds and a declaration that he was entitled to half of those funds. Robert filed a counterclaim for reasonable remuneration for his management of the partnership properties. The case proceeded through various stages, with both parties filing amended defences and counterclaims. Ultimately, the court ruled in favor of the plaintiffs on both the claim and the counterclaim. The central legal issue was whether the defendant, Robert, should be ordered to pay the plaintiff's costs of the whole of the proceedings on an indemnity basis under rule 360 of the Uniform Civil Procedure Rules 1999 (Qld). The court considered whether the plaintiff's letter to the defendant constituted an offer to settle under rule 353 or a Calderbank letter. The court found that the offer was indeed a Calderbank letter and that the defendant's rejection of the offer justified the plaintiff’s claim for indemnity costs. The court concluded that the defendant should be ordered to pay the plaintiff’s costs on an indemnity basis from 14 June 2019, and on the standard basis until that date.

Orders

Orders of the court

1. The Defendant is to pay the Plaintiff’s costs of the proceedings, as agreed or assessed:

a. on the standard basis until 13 June 2019; and thereafter

b. on an indemnity basis from 14 June 2019.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

At that time, the procedural chronology of the proceedings to date was as follows:(a)on 7 January 2019, Richard commenced a proceeding by originating application, seeking orders, inter alia, for an equal distribution, between him and Robert, of certain funds held in the Partnership’s solicitors’ trust account. Those funds were the proceeds of the sale of assets of the Partnership.(b)on 24 January 2019, Daubney J vacated the hearing of Richard’s originating application and ordered that the proceeding continue as if started by claim.(c)on 18 February 2019, Richard filed and served a Statement of Claim. By paragraph 31 of that pleading, Richard disputed the Defendant’s entitlement to any such claims for wages from the Partnership and further asserted that there was no apparent basis, contractual or otherwise, for the claims made. The relief sought by Richard included a declaration that he was entitled to half the funds held in the solicitors’ trust account and an order for half of those funds to be immediately released to him. A further alternative order sought by Richard was that the business and affairs of the Partnership be wound up. As part of that order, Richard sought a final settlement of accounts to ascertain the distribution of assets of the Partnership, and the distribution of assets of the Partnership in accordance with ss 42 and 47 of the Partnership Act 1891 (Qld), without deduction for Robert’s claimed unpaid wages and rent, as per his letter of 7 December 2018.(d)on 21 March 2019, Robert filed a Notice of Intention to Defend and a Defence and Counterclaim. In response to paragraph 31 of the Statement of Claim, the Defence stated at paragraph 27:…the defendant says the precise nature of his claims against the Partnership are as set out in and constituted by the counterclaim herein.Paragraph 6 of the Counterclaim asserted, inter alia:…it was an implied term of the parties’ agreement that…prior to the sharing of the profits of the Partnership’s business, the defendant would receive a reasonable remuneration for his oversight and management of the Partnership Properties… (“the Remuneration Term”).It was pleaded that the Remuneration Term was to be implied from various circumstances which were particularised. In his prayer for relief, Robert sought a declaration that he was:…entitled to reasonable remuneration for his past management of the Partnership Properties, in the sum of $318,000 (plus interest thereupon)… and that such total sum is to be recognised as a liability of the Partnership in the final settlement of the Partnership’s accounts.(e)on 15 April 2019, Robert filed an Amended Defence and Counterclaim. The Amended Defence contained the same paragraph 27 as the original Defence. The Amended Counterclaim was slightly amended but otherwise continued to assert the Remuneration Term was an implied term of the Partnership agreement and, on that basis, Robert was entitled to reasonable remuneration in the sum of $318,000 (plus interest thereupon) which ought to be recognised as a liability of the Partnership.(f)on 7 May 2019, Robert filed an Amended Defence and Further Amended Counterclaim. The Amended Defence contained the same paragraph 27 as the original Defence. The Further Amended Counterclaim contained expanded amended pleadings in respect of the asserted basis for the implied Remuneration Term. The relief sought by the Further Amended Counterclaim continued to be pleaded in the same terms as the Amended Counterclaim.(g)on 27 May 2019, Richard provided Robert with his Reply and Answer to the Amended Defence and Further Amended Counterclaim filed 7 May 2019. Richard denied the existence of the Remuneration Term asserted by Robert. The Answer and Reply was later filed on 2 July 2019.

CITATION:	Lewis v Lewis (No 2) [2022] QSC 219
PARTIES:	Richard LEWIS (Plaintiff) v Robert LEWIS (Defendant)
FILE NO/S:	95/19
DIVISION:	Trial Division
PROCEEDING:	Hearing as to Costs
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	13 October 2022
DELIVERED AT:	Brisbane
HEARING DATE:	6 October 2022
JUDGE:	Crowley J
ORDER:	1. The Defendant is to pay the Plaintiff’s costs of the proceedings, as agreed or assessed: a. on the standard basis until 13 June 2019; and thereafter b. on an indemnity basis from 14 June 2019.
CATCHWORDS:	COSTS – INDEMNITY COSTS – OFFERS TO SETTLE –where the proceedings involved a claim by the plaintiff and a counterclaim by the defendant – where the plaintiff was successful on the whole of the proceedings (the claim and the counterclaim) – whether the defendant should be ordered to pay the plaintiff’s costs of the whole of the proceedings (the claim and the counterclaim) on an indemnity basis under r 360 PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – FORM OF CALDERBANK LETTER – where the plaintiff sent a letter to the defendant making an offer to settle the proceedings – where the letter stated that the offer was made pursuant to r 353 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) – where the letter stated that, alternatively, it was a Calderbank letter – where the letter stated that, if the defendant failed to accept the offer, the plaintiff intended to rely on the letter on the question of costs – where the letter did not state in express terms that the plaintiff would seek indemnity costs in the event that the offer was not accepted – where the defendant rejected the offer – where the defendant subsequently obtained an order no less favourable than the offer – where the plaintiff seeks costs on an indemnity basis – whether the offer was made pursuant to UCPR r 353 – whether the offer was a Calderbank offer – whether the defendant should be ordered to pay the plaintiff’s costs on an indemnity basis Uniform Civil Procedure Rules 1999 (Qld), r 353, r 360, r 361 Australia & New Zealand Banking Group Ltd v Alirezai (No 2) [2002] QSC 205, cited Calderbank v Calderbank [1976] Fam 93, cited Wiggins Island Coal Export Terminal Pty Limited v Civil Mining & Construction Pty Ltd (2021) 7 QR 1; [2021] QCA 8, applied
COUNSEL:	D P de Jersey KC and J D Byrnes for the plaintiff M D White for the defendant
SOLICITORS:	Frews Solicitors for the plaintiff Butler McDermott Lawyers for the defendant