McAndrew v AAI Limited (No 2) - [2013] QSC 317

SUPREME COURT OF QUEENSLAND

CITATION:

McAndrew v AAI Limited (No 2) [2013] QSC 317

PARTIES:

TROY ROBERT McANDREW
(plaintiff)
v
AAI LIMITED
(defendant)

FILE NO/S:

SC No 254 of 2012

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

14 November 2013

DELIVERED AT:

Rockhampton

HEARING DATE:

On the papers

JUDGE:

McMeekin J

ORDER:

That the defendant pay the plaintiff's costs on the standard basis incurred up to and including 24 September 2013 and thereafter the plaintiff pay the defendant's costs on the standard basis1.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF PARTIES – DEMAND, OFFER AND CONSENT – where defendant made a Calderbank offer to plaintiff on 20 September 2013 – where plaintiff rejected offer – where three day trial commenced on 24 September 2013 - where judgment was found in favour of plaintiff - where the offer was more advantageous to the plaintiff than the eventual judgment – whether the general rule be followed that costs should follow the event

Uniform Civil Procedure Rules 1999 (Qld), r681

Calderbank v Calderbank [1975] 3 All ER 333, cited

Commonwealth v Gretton [2000] NSWCA 118, cited

Elite Protective Personnel v Salmon [2007] NSWCA 322, cited

Evans Shire Council v Richardson (No 2) [2006] NSWCA 61, cited

Jones v Bradley (No 2) [2003] NSWCA 258, cited

Jones v Millward [2005] 1 Qd R 489, cited

Lawes v Nominal Defendant [2007] QSC 103, cited

Leichardt Municipal Council v Green [2004] NSWCA 341, cited

Northbound Property Group Pty Ltd ACN 111 393 894 v Peter Carosi and Ors(No 2) [2013] QSC 189, cited

State of Queensland v Hayes (No 2) [2013] QSC 80, cited

Vagg v Mcphee (No 2) [2012] NSWSC 187, cited

COUNSEL:

Mr GC O’Driscoll for the Plaintiff

Mr GF Crow QC with him Mr A Arnold for the Defendant

SOLICITORS:

Murphy Schmidt Solicitors for the Plaintiff

Jensen McConaghy Solicitors for the Defendant

McMeekin J: On 25 October 2013 I gave judgment for the plaintiff in the sum of $1,420,209.60 after a trial. I gave leave to the parties to make submissions on costs. The parties have not agreed on the appropriate order.

A costs order is, of course, discretionary but in the normal course should follow the event: r681 Uniform Civil Procedure Rules 1999 (“UCPR”). Here the plaintiff succeeded to a substantial judgment. In the normal course the plaintiff should receive his costs. The debate is as to whether that normal course should be followed here.

The trial commenced on 24 September 2013. On 20 September 2013, the Friday before the commencement of the trial, the defendant offered to settle the action by the payment to the plaintiff of the sum of $1.5 million clear of the payments already made to the plaintiff by the defendant. The offer was said to be made in accordance with the principles expressed in Calderbank v Calderbank [1975] 3 All ER 333. The…

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.

Keep reading for free

Create a free CaseChat account to read McAndrew v AAI Limited (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] QSC 317
Decision Date: 14 November 2013

CaseChat Overview and Summary

In McAndrew v AAI Limited (No 2), the plaintiff sought to recover damages for injuries sustained in a motor vehicle accident. The defendant, AAI Limited, made a settlement offer to the plaintiff on 20 September 2013. The plaintiff rejected this offer and the case proceeded to trial, which commenced on 24 September 2013. The plaintiff was successful in their claim, and judgment was entered in their favour. However, the settlement offer made by the defendant was more favourable to the plaintiff than the eventual judgment. The primary issue before the court was whether the general rule that costs follow the event should be departed from in light of the rejected settlement offer and the subsequent outcome of the trial.

The court considered the relevant authorities and principles concerning costs and the impact of rejected settlement offers on cost awards. The court noted that under the general rule, the costs of litigation are awarded to the party who prevails in the proceedings. However, this rule is not absolute, and the court has the discretion to depart from it in certain circumstances. In this case, the court recognised that the rejected settlement offer was a significant factor to be considered in determining the appropriate costs order.

The court held that the general rule should be departed from in this instance. The rejected settlement offer was more advantageous to the plaintiff than the eventual judgment, and the plaintiff's conduct in rejecting the offer was a significant factor in the court's decision. The court found that it was just and equitable to order that the defendant pay the plaintiff's costs up to and including the date of the rejected offer, and thereafter, the plaintiff pay the defendant's costs on the standard basis. This order reflected the court's assessment of the parties' conduct and the relative advantages of the settlement offer and the eventual judgment.

Accordingly, the court made an order that the defendant pay the plaintiff's costs on the standard basis incurred up to and including 24 September 2013, and thereafter, the plaintiff pay the defendant's costs on the standard basis. This outcome recognises the significance of the rejected settlement offer and the parties' conduct in the proceedings, and ensures that the costs order reflects the just and equitable outcome in the circumstances of this case.

Orders

Orders of the court

That the defendant pay the plaintiff's costs on the standard basis incurred up to and including 24 September 2013 and thereafter the plaintiff pay the defendant's costs on the standard basis1.

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

Full text does not contain this section.

CITATION:	McAndrew v AAI Limited (No 2) [2013] QSC 317
PARTIES:	TROY ROBERT McANDREW (plaintiff) v AAI LIMITED (defendant)
FILE NO/S:	SC No 254 of 2012
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	14 November 2013
DELIVERED AT:	Rockhampton
HEARING DATE:	On the papers
JUDGE:	McMeekin J
ORDER:	That the defendant pay the plaintiff's costs on the standard basis incurred up to and including 24 September 2013 and thereafter the plaintiff pay the defendant's costs on the standard basis1.
CATCHWORDS:	PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF PARTIES – DEMAND, OFFER AND CONSENT – where defendant made a Calderbank offer to plaintiff on 20 September 2013 – where plaintiff rejected offer – where three day trial commenced on 24 September 2013 - where judgment was found in favour of plaintiff - where the offer was more advantageous to the plaintiff than the eventual judgment – whether the general rule be followed that costs should follow the event Uniform Civil Procedure Rules 1999 (Qld), r681 Calderbank v Calderbank [1975] 3 All ER 333, cited Commonwealth v Gretton [2000] NSWCA 118, cited Elite Protective Personnel v Salmon [2007] NSWCA 322, cited Evans Shire Council v Richardson (No 2) [2006] NSWCA 61, cited Jones v Bradley (No 2) [2003] NSWCA 258, cited Jones v Millward [2005] 1 Qd R 489, cited Lawes v Nominal Defendant [2007] QSC 103, cited Leichardt Municipal Council v Green [2004] NSWCA 341, cited Northbound Property Group Pty Ltd ACN 111 393 894 v Peter Carosi and Ors(No 2) [2013] QSC 189, cited State of Queensland v Hayes (No 2) [2013] QSC 80, cited Vagg v Mcphee (No 2) [2012] NSWSC 187, cited
COUNSEL:	Mr GC O’Driscoll for the Plaintiff Mr GF Crow QC with him Mr A Arnold for the Defendant
SOLICITORS:	Murphy Schmidt Solicitors for the Plaintiff Jensen McConaghy Solicitors for the Defendant