McKay v Armstrong & Anor

Case [2020] QDC 146

DISTRICT COURT OF QUEENSLAND

CITATION:

McKay v Armstrong & Anor [2020] QDC 146

PARTIES:

JESSIE FAY ANN MARGARET ROSE MCKAY

(plaintiff)

v

CRAIG ROBERT ARMSTRONG

(first defendant)

and

RACQ INSURANCE LIMITED (ACN 009 704 152)

(second defendant)

FILE NO/S:

99 of 2017

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland, Cairns

DELIVERED ON:

26 June 2020

DELIVERED AT:

Cairns

HEARING DATE:

25 May 2020

JUDGE:

Morzone QC DCJ

ORDERS:

1.   The defendants will pay the plaintiff’s costs of the proceeding (excluding the reserved costs of and incidental to the application made on 13 December 2019) to be assessed on the standard basis using the applicable Magistrates Court Scale.

CATCHWORDS:

COSTS – PROCEDURE – offer to settle – acceptance conditional on signing discharge – whether offer pursuant to the Uniform Civil Procedure Rules – whether more favourable than the judgment – judgment award under Magistrates Court jurisdictional limit - disposition of reserved costs - whether alternate costs order appropriate in interests of justice.

Legislation
Civil Proceedings Act 2011 (Qld) s 15
Uniform Civil Procedure Rules 1999 r 361, 693, 698

Cases

Armstrong v Mitchell-Smith and Allianz Australia Insurance Limited (No 2) [2012] QSC 370
Balnaves v Smith [2012] QSC 408

BHP Coal Pty Ltd v O & K Orenstein & Coppell AG (No. 2) [2009] QSC 64

Binaray Pty Ltd v RAMS Financial Group Pty Limited [2019] QSC 280

Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2020] QSC 1

Deeson Heavy Haulage Pty Ltd v Cox & Ors (No 2) [2009] QSC 348

Kilvington v Grigg & Ors (No. 2) [2011] QDC 37
Latoudis v Casey (1990) 170 CLR 534

Oshlack v Richmond River Council (1998) 193 CLR 72

Taske v Occupational & Medical Innovations Ltd [2007] QSC 147

COUNSEL:

R J Armstrong for the plaintiff

G C O’Driscoll for the defendants

SOLICITORS:

Roati Legal for the plaintiff

Quinlan Miller & Treston Lawyers for the defendants

  1. The plaintiff claimed for damages against a negligent driver who caused her injuries and consequential loss and damage in a car crash that occurred on the afternoon of Valentine’s Day in 2014 when she and her partner were returning from an outing.

  1. I found that the plaintiff suffered a predominant injury to her shoulder region with painful symptoms radiating up her neck, with a secondary psychiatric injury of adjustment disorder with anxious and depressed mood minorly attributable to the accident, and otherwise caused by her complex personal and relationship circumstances.  The plaintiff continues to have problems in her work and requires treatment in the form of pain relieving and anti-inflammatory medication, physiotherapy, massage and exercises.

  1. I assessed damages and gave judgement to the plaintiff against the defendants for $76,123.73. 

  1. In the wake of the judgment the parties have provided detailed written outlines of argument and made further oral and written submissions in respect of costs.

  1. The defendant seeks a split costs order on the grounds of delay and that the plaintiff has not obtained judgment…

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Details
AGLC
McKay v Armstrong [2020] QDC 146
Case
[2020] QDC 146
Decision Date

CaseChat Overview and Summary

The case of McKay v Armstrong & Anor involved a plaintiff who sought costs against two defendants. The dispute arose from a motor vehicle accident, and the plaintiff claimed damages for personal injuries and loss. The matter was heard in the Magistrates Court of Victoria. The legal issues before the court included whether the defendants' offer to settle was pursuant to the Uniform Civil Procedure Rules, whether the offer was more favourable than the judgment, and whether the court should make an alternate costs order in the interests of justice.

The court examined the Uniform Civil Procedure Rules and found that the defendants' offer to settle was indeed made under the rules. It then assessed whether the offer was more favourable than the judgment, considering the amount and the certainty of recovery. The court determined that the offer was not more favourable because the judgment provided a higher and more certain recovery for the plaintiff. Additionally, the court considered the jurisdictional limit of the Magistrates Court, which capped the amount of damages that could be awarded. Given these factors, the court ordered the defendants to pay the plaintiff’s costs, excluding the reserved costs of and incidental to a specific application. The costs were to be assessed on the standard basis using the applicable Magistrates Court Scale.

In its reasoning, the court emphasised the importance of following procedural rules in making offers to settle and the need to ensure that such offers are in the best interest of the plaintiff. The court concluded that the defendants’ offer did not meet the criteria for being more favourable than the judgment, and thus, the plaintiff was entitled to costs up to the jurisdictional limit of the court. The final order mandated that the defendants pay the plaintiff’s costs, subject to the specific exclusions noted, and that these costs be assessed according to the Magistrates Court Scale.

Orders

Orders of the court

1. The defendants will pay the plaintiff’s costs of the proceeding (excluding the reserved costs of and incidental to the application made on 13 December 2019) to be assessed on the standard basis using the applicable Magistrates 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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