Mott v Philip; Prosser v Philip (No 2) - [2017] QSC 255

SUPREME COURT OF QUEENSLAND

CITATION:

Mott v Philip & Ors; Prosser v Philip & Ors (No 2) [2017] QSC 255

PARTIES:

S53/2015:

ANDREW JAMES MOTT
(Plaintiff)

v

PHEOBE PHILIP
(First Defendant)

And

NRMA INSURANCE AUSTRALIA LTD (ABN 11 000 016 722)

(Second Defendant)

And

MACKAY REGIONAL COUNCIL (ABN 56 240 712 069)

(Third Defendant)

And

DOWNER EDI WORKS PTY LTD (ABN 66 008 709 608)
(Fourth Defendant)

And

BRW TRANSPORT & QUARRIES PTY LTD (ABN 96 085 637 010)
(Fifth Defendant);

S54/2015:

LAUREN MAY PROSSER
(Plaintiff)

v

PHEOBE PHILIP
(First Defendant)

And

NRMA IINSURANCE AUSTRALIA LTD (ABN 11 000 016 722)

(Second Defendant)

And

DOWNER EDI WORKS PTY LTD (ABN 66 008 709 608) (Third Defendant)

And

BRW TRANSPORT & QUARRIES PTY LTD (ABN 96 085 637 010)
(Fourth Defendant)

FILE NO/S:

S53 of 2015; S54/2015

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court Mackay

DELIVERED ON:

10 November 2017

DELIVERED AT:

Rockhampton

HEARING DATE:

On the papers – last submissions received 30 October 2017

JUDGE:

McMeekin J

ORDER:

Mott v Philip & Ors – 53/15

I order that the second defendant pay:

the costs of the plaintiff on the standard basis, those costs to include the costs incurred by the plaintiff in his proceedings against the third, fourth and fifth defendants;(a)

the costs of the third, fourth and fifth defendants on the standard basis.(b)

the costs of the third, fourth and fifth defendants incurred in the contribution proceedings between the parties, on the standard basis.(c)

Prosser v Philip & Ors – 54/15

I order that the second defendant pay:

the costs of the plaintiff on the standard basis, those costs to include the costs incurred by the plaintiff in her proceedings against the third and fourth defendants;(a)

the costs of the third and fourth defendants on the standard basis. (b)

the costs of the third and fourth defendants incurred in the contribution proceedings between the parties, on the standard basis.(c)

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERALLY – where reasons in both matters have been delivered – where the proceedings involved claims for damages by two plaintiffs arising out of a motor vehicle accident – where it was determined after trial that the first defendant was responsible for the accident – where the second defendant is the insurer of the first defendant under the statutory insurance policy – where the defendant accepts its liability to pay the costs of each of the parties on the standard basis and the applicability of a Sanderson order – where the parties have been unable to agree as to the effect of the respective offers

PROCEDURE – COSTS – RECOVERY OF COSTS – MULTIPLE DEFENDANTS – where in proceeding 54/15 the plaintiff served a formal offer to settle the liability issue between the first and second defendants – where the result at trial was more favourable than the offer made – where the pre-conditions to the making of an order…

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.

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Details

Case: [2017] QSC 255
Decision Date: 10 November 2017

CaseChat Overview and Summary

The case of Mott v Philip; Prosser v Philip (No 2) involved multiple claims for damages arising out of a motor vehicle accident. The disputes were heard in the Supreme Court of Queensland. The first case, Mott v Philip, was between Mott, the plaintiff, and Philip, the first defendant, who was found to be responsible for the accident. The second defendant, the statutory insurer, was also involved in the proceedings. The second case, Prosser v Philip, was between Prosser, the plaintiff, and Philip, the first defendant, with similar circumstances regarding the statutory insurer. Both defendants accepted liability to pay the costs of each party on a standard basis but disagreed on the applicability of a Sanderson order.

The court had to determine the legal issues concerning the recovery of costs between the parties. Specifically, the court needed to decide whether the costs between the plaintiff and the first and second defendants should be paid on an indemnity basis, given that the result at trial was more favourable than the offer made by the plaintiff. Additionally, the court needed to decide whether costs should be ordered to be paid on the indemnity basis from the date of a contribution offer made by the third, fourth, and fifth defendants to the first and second defendants.

The court ruled that the costs between the plaintiff and the first and second defendants should be ordered to be paid on the indemnity basis because the pre-conditions to making such an order were satisfied. The court held that the third, fourth, and fifth defendants' costs should be payable on the standard basis up until the date of their contribution offer. However, the court ordered that the costs should be paid on the indemnity basis from the date of the offer, as the third, fourth, and fifth defendants were not entitled to the benefit of their offer.

The final orders required the second defendant to pay the costs of the plaintiffs on the standard basis, including the costs incurred in proceedings against the third, fourth, and fifth defendants. The second defendant was also ordered to pay the costs of the third, fourth, and fifth defendants on the standard basis, as well as the costs of the third, fourth, and fifth defendants incurred in the contribution proceedings. Similar orders were made in the Prosser v Philip case.

Orders

Orders of the court

Mott v Philip & Ors – 53/15

I order that the second defendant pay:

the costs of the plaintiff on the standard basis, those costs to include the costs incurred by the plaintiff in his proceedings against the third, fourth and fifth defendants;(a)

the costs of the third, fourth and fifth defendants on the standard basis.(b)

the costs of the third, fourth and fifth defendants incurred in the contribution proceedings between the parties, on the standard basis.(c)

Prosser v Philip & Ors – 54/15

I order that the second defendant pay:

the costs of the plaintiff on the standard basis, those costs to include the costs incurred by the plaintiff in her proceedings against the third and fourth defendants;(a)

the costs of the third and fourth defendants on the standard basis. (b)

the costs of the third and fourth defendants incurred in the contribution proceedings between the parties, on the standard basis.(c)

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:	Mott v Philip & Ors; Prosser v Philip & Ors (No 2) [2017] QSC 255
PARTIES:	S53/2015: ANDREW JAMES MOTT (Plaintiff) v PHEOBE PHILIP (First Defendant) And NRMA INSURANCE AUSTRALIA LTD (ABN 11 000 016 722) (Second Defendant) And MACKAY REGIONAL COUNCIL (ABN 56 240 712 069) (Third Defendant) And DOWNER EDI WORKS PTY LTD (ABN 66 008 709 608) (Fourth Defendant) And BRW TRANSPORT & QUARRIES PTY LTD (ABN 96 085 637 010) (Fifth Defendant); S54/2015: LAUREN MAY PROSSER (Plaintiff) v PHEOBE PHILIP (First Defendant) And NRMA IINSURANCE AUSTRALIA LTD (ABN 11 000 016 722) (Second Defendant) And DOWNER EDI WORKS PTY LTD (ABN 66 008 709 608) (Third Defendant) And BRW TRANSPORT & QUARRIES PTY LTD (ABN 96 085 637 010) (Fourth Defendant)
FILE NO/S:	S53 of 2015; S54/2015
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court Mackay
DELIVERED ON:	10 November 2017
DELIVERED AT:	Rockhampton
HEARING DATE:	On the papers – last submissions received 30 October 2017
JUDGE:	McMeekin J
ORDER:	*Mott v Philip & Ors – 53/15* I order that the second defendant pay: the costs of the plaintiff on the standard basis, those costs to include the costs incurred by the plaintiff in his proceedings against the third, fourth and fifth defendants;(a) the costs of the third, fourth and fifth defendants on the standard basis.(b) the costs of the third, fourth and fifth defendants incurred in the contribution proceedings between the parties, on the standard basis.(c) *Prosser v Philip & Ors – 54/15* I order that the second defendant pay: the costs of the plaintiff on the standard basis, those costs to include the costs incurred by the plaintiff in her proceedings against the third and fourth defendants;(a) the costs of the third and fourth defendants on the standard basis. (b) the costs of the third and fourth defendants incurred in the contribution proceedings between the parties, on the standard basis.(c)
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERALLY – where reasons in both matters have been delivered – where the proceedings involved claims for damages by two plaintiffs arising out of a motor vehicle accident – where it was determined after trial that the first defendant was responsible for the accident – where the second defendant is the insurer of the first defendant under the statutory insurance policy – where the defendant accepts its liability to pay the costs of each of the parties on the standard basis and the applicability of a Sanderson order – where the parties have been unable to agree as to the effect of the respective offers PROCEDURE – COSTS – RECOVERY OF COSTS – MULTIPLE DEFENDANTS – where in proceeding 54/15 the plaintiff served a formal offer to settle the liability issue between the first and second defendants – where the result at trial was more favourable than the offer made – where the pre-conditions to the making of an order…