Mansi v O'Connor

Case [2012] QSC 374

SUPREME COURT OF QUEENSLAND

CITATION:

Mansi v O’Connor & Ors [2012] QSC 374

PARTIES:

GIOVANNO ASTRUO MANSI
(Plaintiff)
v
JAMES EDWARD O'CONNOR
(First Defendant)

QBE INSURANCE (AUSTRALIA) LIMITED
(ABN 78 003 191 035)
(Second Defendant)

THE NOMINAL DEFENDANT
(Third Defendant)

PETESAGI PTY LTD (ACN 077 602 790)
(Fourth Defendant)

SABDOKE PTY LTD (ACN 010 290 525)
(Fifth Defendant)

SUNCORP METWAY INSURANCE LIMITED
(ACN 075 695 966)
(Sixth Defendant)

SHANE ELLIS
(Seventh Defendant)

GRACHELLE TRANSPORT PTY LTD
(ACN 102 485 272)
(Eighth Defendant)

ASHMA PTY LTD (ACN 112 666 001)
(Ninth Defendant)

ALLIANZ AUSTRALIA INSURANCE LIMITED
(ABN 15 000 122 850)
(Tenth Defendant)

FILE NO/S:

BS No. 7262 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

2 October
Written submissions received on 9 October 2012

JUDGE:

Ann Lyons J

ORDER:
  1. That judgment be entered for the Plaintiff against the Second Defendant in the sum of $93,757.51;
  1. That the Second Defendant pay the Plaintiff’s costs of and incidental to the proceeding to be assessed up to and including 31 October 2010 on the District Court Scale and thereafter until 22 May 2012 on the Magistrates Court Scale;
  1. That the Second Defendant pay the Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Defendants’ costs of and incidental to the proceeding to be assessed on the standard basis of assessment up to and including 22 May 2012;
  1. That the Plaintiff pay all Defendants’ costs of and incidental to the proceeding on and from 23 May 2012 to be assessed on the indemnity basis of assessment; and
  1. That the assessed costs ordered to be paid by the Plaintiff be set off against the judgment sum and assessed costs ordered to be paid to the Plaintiff by the Second defendant, prior to any payment by the Second Defendant to the Plaintiff of, or execution on, the balance after such set off.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – OTHER CASES – Where Plaintiff and Defendants made Mandatory Final Offers pursuant to the Motor Accident Insurance Act 1994 (Qld) – Where Defendants made an offer to settle a week before trial which the Plaintiff rejected – whether the defendant was unreasonable in not accepting the offer – whether costs should be awarded on an indemnity basis

PROCEDURE – COSTS – SCALE OF COSTS – DISCRETION TO VARY SCALE – whether costs should be awarded on the Magistrates Court Scale or the Supreme Court Scale pursuant to the Uniform Civil Procedure Rules 1999 (Qld) – whether the circumstances justify the exercise of discretion to award costs on the Supreme Court Scale

Motor Accident Insurance Act 1994 (Qld), s 45(3), s 51C(10)
Uniform Civil Procedure Rules 1999 (Qld), r 698(2)

Besterman v British Motor Cab Company Ltd [1914] 3 KB 181

Calderbank v Calderbank (1975) 3 All ER 333
Carr & Anor v Anderson (No.2) (2001) QDC 305
Cutts v Head (1984) 1 All ER 597

Howell v Nominal…

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Details
AGLC
Mansi v O’Connor & Ors [2012] QSC 374
Case
[2012] QSC 374
Decision Date

CaseChat Overview and Summary

Mansi v O'Connor involved a dispute over personal injuries sustained in a motor vehicle accident. The plaintiff alleged that he was injured due to the negligence of the driver of a Readymix truck, insured by the second defendant. The court awarded damages of $93,757.51 to the plaintiff. The key legal issues revolved around the determination of costs and whether they should be assessed on the Magistrates or Supreme Court Scale, as well as the impact of the plaintiff's bankruptcy on the costs order.

The court considered the statutory requirement under the Motor Accident Insurance Act 1994 (Qld) to take into account any Mandatory Final Offers made during pre-proceedings. The second defendant had made an offer of $400,000.00 plus costs a week before the trial, which the plaintiff rejected. The court noted that the rejection of this offer could impact the costs order, as per the principles set out in Calderbank v Calderbank. Additionally, the court had to decide whether the costs should be awarded on the Magistrates or Supreme Court Scale under the Uniform Civil Procedure Rules 1999 (Qld). Given the circumstances, the court opted to award costs on the Magistrates Court Scale up until a certain date, after which the costs would be assessed on the District Court Scale. The plaintiff’s bankruptcy, which was disclosed during the trial, also played a role in determining the costs order.

The court ruled that the second defendant should bear the costs of the plaintiff up until a specific date on the Magistrates Court Scale and thereafter on the District Court Scale. Additionally, the second defendant was ordered to pay the costs of the third to tenth defendants up until a certain date. The plaintiff was required to pay all defendants' costs from a specified date onwards on an indemnity basis. The assessed costs payable by the plaintiff were to be set off against the judgment sum and assessed costs payable to the plaintiff by the second defendant before any further payment or execution.

In summary, the court awarded damages to the plaintiff and directed the second defendant to pay the plaintiff's costs up to a certain date on the Magistrates Court Scale and thereafter on the District Court Scale. The second defendant was also ordered to pay the costs of the other defendants up to a specific date, while the plaintiff was to pay the defendants' costs from a certain date onwards on an indemnity basis. The costs payable by the plaintiff were to be offset against the judgment sum and costs payable to the plaintiff by the second defendant before any further payment or execution.

Orders

Orders of the court

1. That judgment be entered for the Plaintiff against the Second Defendant in the sum of $93,757.51;

1. That the Second Defendant pay the Plaintiff’s costs of and incidental to the proceeding to be assessed up to and including 31 October 2010 on the District Court Scale and thereafter until 22 May 2012 on the Magistrates Court Scale;

1. That the Second Defendant pay the Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Defendants’ costs of and incidental to the proceeding to be assessed on the standard basis of assessment up to and including 22 May 2012;

1. That the Plaintiff pay all Defendants’ costs of and incidental to the proceeding on and from 23 May 2012 to be assessed on the indemnity basis of assessment; and

1. That the assessed costs ordered to be paid by the Plaintiff be set off against the judgment sum and assessed costs ordered to be paid to the Plaintiff by the Second defendant, prior to any payment by the Second Defendant to the Plaintiff of, or execution on, the balance after such set off.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

That judgment be entered for the Plaintiff against the Second Defendant in the sum of $93,757.51; That the Second Defendant pay the Plaintiff’s costs of and incidental to the proceeding to be assessed up to and including 31 October 2010 on the District Court Scale and thereafter until 22 May 2012 on the Magistrates Court Scale; That the Second Defendant pay the Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Defendants’ costs of and incidental to the proceeding to be assessed on the standard basis of assessment up to and including 22 May 2012; That the Plaintiff pay all Defendants’ costs of and incidental to the proceeding on and from 23 May 2012 to be assessed on the indemnity basis of assessment; and That the assessed costs ordered to be paid by the Plaintiff be set off against the judgment sum and assessed costs ordered to be paid to the Plaintiff by the Second defendant, prior to any payment by the Second Defendant to the Plaintiff of, or execution on, the balance after such set off. On 2 October 2012 I delivered my reasons in relation to the plaintiff’s claim for personal injuries as a result of a motor vehicle accident. I found that the driver of First Defendant’s vehicle had been negligent in his driving of the QBE (Second Defendant) insured Readymix truck and that the plaintiff had been injured when he fell from his motorcycle after he lost control of the motorcycle as it slid in the concrete slurry which was discharged from the truck. He suffered a fracture to his right wrist. Damages were assessed at $93,757.51. The issue of costs remains. Counsel provided written submissions on costs on 9 October 2012. Pursuant to s 51C(10) of the Motor Accident Insurance Act 1994 (Qld) (“MAIA”), the Court must (where relevant) have regard to any Mandatory Final Offer (“MFO”) made in the course of the pre-proceeding procedures in making a decision about costs. The affidavit of Paul Birkett sworn 2 October 2012 indicates that the following MFO’s were exchanged at the compulsory conference on 10 December 2010: On Tuesday 22 May 2012, a week before the commencement of the trial, the Defendants offered to settle the Plaintiff’s claim in the sum of $400,000.00 plus costs.[1] The letter expressly stated that should the offer not be accepted then it would be brought to the attention of the Court on the question of costs in accordance with the principles enunciated in Calderbank v Calderbank.[2] The offer was open for acceptance until 4.00 pm on Wednesday 23 May 2012 and was rejected on that day.[1]Exhibit PRB2 to the Affidavit of P R Birkett sworn 2 October 2012. [2](1975) 3 All ER 333. The Plaintiff was made bankrupt on presentation of a Debtor’s Petition on 16 February 2012. On 23 May 2012 the Plaintiff’s bankruptcy was disclosed in a forensic accountant’s report by Vincents dated 23 May 2012. Counsel for the Plaintiff submits that the Second Defendant, as Licensed Insurer of the First Defendant, is wholly responsible for the Plaintiff’s claim for personal injuries arising out of this accident. In the ordinary course therefore, the order for the plaintiff’s costs should follow the event. Counsel for the plaintiff submits that given the denials of liability by the Second and Third Defendants[3] and the investigations that had been made, it was necessary and prudent for the Plaintiff to join all potential Defendants. All Defendants continued to maintain denials of liability[4] and had single representation at the Trial. In these circumstances it is argued that it is appropriate for a ‘Sanderson order’[5] in relation to costs; that is, an order requiring the Second Defendant to pay the costs of the Third – Tenth Defendants.[6][3]See Notices of Intention to Defend, Court File Documents 2 and 3.[4]See Notices of Intention to Defend, Court File Documents 24, 25, 26 and 34.[5]Sanderson v Blythe Theatre Co (1903) 2 KB 533.[6]As in the two-vehicle case of Smyth v McLeod & Ors [2004] QSC 43; and the Sanderson costs order in Smyth v McLeod & Ors [2004] QSC 69 at paras [5]-[7] and [8.3].

Ratio Decidendi

Legal Principle Established

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