Moule v Suncorp Insurance and Finance

[1992] QCA 33

[1992] QCA 033

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

A.P. No. 105 of 1991

Before the Court of Appeal

The President
Mr Justice Pincus

Mr Justice McPherson

BETWEEN:

SUNCORP INSURANCE

Appellant (Defendant by
Election in District Court

Proceedings)

AND:

JAMES ARTHUR MOULE

Respondent (Plaintiff in
District Court

Proceedings)

JUDGMENT - THE COURT

Delivered the 23rd day of March 1992

The appellant was the defendant by election in a

District Court action in which it was ordered to pay the
respondent, the plaintiff in that action, "his party and
party costs and outlays of and incidental to this action ...
to be taxed ...". It was not disputed on this appeal that
that order extended not only to the respondent's costs up to
that order but also to the costs of taxation, subject
however to the effect of Order 91 r.89 of the Rules of the
Supreme Court which was accepted as applicable by virtue of
Rule 4(a) of the District Court Rules.

Order 91 r. 89 of the Rules of the Supreme Court is in the following terms:

"Taxation of costs when parties differ

89. When it is directed that costs shall be taxed in
case the parties differ about the same, the party
claiming the costs shall bring the bill, of costs into
the office of the taxing officer, and shall give notice
of his having so done to the other party, and at any
time within eight days after such notice such other
party shall be at liberty to inspect the same without
fee. At or before the expiration of such eight days,
or within such further time as the taxing officer may
in his discretion allow, such other party shall either
agree to pay the costs or signify his dissent
therefrom, and shall thereupon be at liberty to tender
a sum of money for the costs. If he makes no such
tender, or if the party claiming the costs refuses to
accept the sum so tendered, the taxing officer shall
proceed to tax the costs; and if the taxed costs do not
exceed the sum tendered, the costs of the taxation
shall be borne by the party claiming the costs."
A similar rule exists in other jurisdictions in

Australia, where it is said to be "very seldom utilised":
see A. Saddington: Taxation of Costs between Parties (1919),

at 188. There is no authority on its meaning or operation.

On 5th June 1991, the respondent served upon the

appellant a bill of costs in taxable form which it had
earlier filed and in relation to which it had obtained an
appointment for taxation. The bill of costs included not
only items in relation to costs and outlays up to that time
but also further items with respect to the proposed taxation

of the bill as follows:

"Attendance on Taxation of this	90.00
Bill of Costs [2 hours] ]Item 63(a)]
Drawing Certificate of Taxation
(1 folio) [Item 34(a)]	4.05
Engrossing same to file (1 folio)
[Item 37]	1.35
Sealed copy thereof to serve [Item 37]	1.35
Further copy thereof to serve (Item 37) 1.35
Attending Taxation Officer to have
Certificate signed (Item 43)	16.00
Attending District Court Registry to file
Certificate of Taxation (Item 43)	16.00
Paid filing fee	26.00
Attending Solicitors for the Defendant
by Election to Serve copy Certificate of
Taxation	15.00

3,682.20 8,288.33

ADD DISBURSEMENTS:	3,692.20
DELIVERED AT:
LESS TAXED OFF: ADD SHORT CHARGES: ADD TAXING FEE:
ALLOWED AT:	"
In accordance with Order 91 r.89 of the Rules of the

Supreme Court, the appellant signified its dissent and tendered the sum of $9,000 for the costs. The respondent refused to accept the sum so tendered, and the taxing officer proceeded to tax the costs. The amount assessed in respect of costs and disbursements for items up to the time of tender was $8,787.54; that is to say, less than the sum tendered. However, the amount assessed in respect of items subsequent to tender, that is to say, in respect of the costs of the taxation, together with the amount assessed in respect of items prior to tender totalled $9,719.14, which is more than the sum tendered.

In such circumstances, the taxing officer held that the

taxed costs exceeded the sum tendered and allowed the
respondent the costs of the taxation. The appellant's
application for review of the taxing master's decision was
dismissed by the District Court and the appellant has
appealed to this court by the leave of the Master.
Conditions attached to the grant of leave requiring the
appellant to pay the costs of and incidental to the
proceedings in the District Court, before the Master and of
this Appeal. The order sought by the appellant on this
appeal is that the taxing officer be directed to disallow
the respondent his costs of the taxation and to deduct the
appellant's costs of the taxation in assessing the costs
ordered to be paid by the appellant to the respondent.

The superficial attraction in the case for the

respondent lies in its apparent reliance upon the literal
meaning of "taxed costs" in the concluding portion of Order
91 r.89. It is said that the "taxed costs" are the amount
stated in the certificate of taxation, which is the amount
assessed in respect of all items, both before and after

tender.

However, a flaw in this argument becomes visible on

closer analysis. If that were the meaning of "taxed costs"
in the material part of Order 91 r. 89, the resultant
circuity would diminish, if not eliminate, its effective
operation. The rule requires one to compare the "taxed
costs" with the sum tendered and the result of the

comparison determines which side pays the costs of taxation.

If "taxed costs" in the rule includes the costs of

taxation, then the comparison is made on an assumption which
anticipates the outcome of the comparison.

Once that point is reached, there is little to be said

in favour of the respondent. The "taxed costs" must mean
either the amount assessed in respect of costs and
disbursements for items prior to tender or the amount
assessed in respect of costs and disbursements for items
both prior to and subsequent to tender, that is to say,
assessed in respect of costs and outlays for items prior to
tender and in respect of the costs of the taxation. In
choosing which of these possible constructions is to be
preferred, it is appropriate to have regard to the manifest
purpose of the provisions with respect to tender in Order 91
r.89, which is to provide both parties with an incentive to
avoid the need for taxation and associated costs by
encouraging the party ordered the pay the costs to tender an
appropriate sum and the party in whose favour an order for
costs has been made to accept such a tender. That purpose
is at best substantially defeated if, as the respondent
contends, the party entitled to an order for costs is
entitled to be tendered sufficient to cover the costs of the
taxation even if the tender is accepted and the taxation
does not occur. Conversely, the purpose of the rule is
totally effectuated if effect is given the approach
contended for by the appellant, which is both logical and
avoids anomalous results.

We are of opinion that in the context "taxed costs"

means the amount assessed in respect of costs and

disbursements for items prior to tender.

The appeal will be allowed and the orders of the

District Court except as to costs, will be set aside. The
Court orders that the matter be remitted to the taxing

officer with the following directions:

(i) That the respondent (plaintiff) be disallowed, the
costs associated with the taxation and incurred
subsequent to the tender made on 28 June, 1991; and
(ii) That the costs to be allowed be further reduced by
the costs of taxation of the appellant (defendant by
election) incurred subsequent to the date of the
tender, namely, 28 June 1991.

The appellant must, in accordance with the conditions

on which leave to appeal was granted pay the costs of the
application for leave and the costs of and incidental to
this appeal.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

A.P. No. 105 of 1991

BETWEEN:

SUNCORP INSURANCE

Appellant (Defendant by
Election in District Court

Proceedings)

AND:

JAMES ARTHUR MOULE

Respondent (Plaintiff in
District Court

Proceedings)

The President
Mr Justice Pincus

Mr Justice McPherson

Judgement of the Court delivered

on 23 March, 1992

Appeal allowed. Orders of the District Court
except as to costs, to be set aside. Order that
the matter be remitted to the taxing officer with
the following directions:
(i) That the respondent (plaintiff) be
disallowed, the costs associated with the taxation
and incurred subsequent to the tender made on 28
June, 1991; and
(ii) That the costs to be allowed be further
reduced by the costs of taxation of the appellant
(defendant by election) incurred subsequent to the
date of the tender, namely, 28 June 1991.
The appellant must, in accordance with the
conditions on which leave to appeal was granted
pay the costs of the application for leave and the
costs of and incidental to this appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

A.P. No. 105 of 1991

Before the Court of Appeal
The President
Mr Justice Pincus
Mr Justice McPherson

BETWEEN:

SUNCORP INSURANCE

Appellant (Defendant by
Election in District Court

Proceedings)

AND:

JAMES ARTHUR MOULE

Respondent (Plaintiff in
District Court

Proceedings)

JUDGMENT - THE COURT

Delivered the 23rd day of March 1992

MINUTE OF ORDER:	Appeal allowed. Orders of the District Court except as to costs, to be set aside. Order that the matter be remitted to the taxing officer with the following directions: (i) That the respondent (plaintiff) be disallowed, the costs associated with the taxation and incurred subsequent to the tender made on 28 June, 1991; and (ii) That the costs to be allowed be further reduced by the costs of taxation of the appellant (defendant by election) incurred subsequent to the date of the tender, namely, 28 June 1991. The appellant must, in accordance with the conditions on which leave to appeal was granted pay the costs of the application for leave and the costs of and incidental to this appeal.
CATCHWORDS:	COSTS - TAXATION - Appeal from order that appellant pay respondent's costs of taxation after tender which was more than total excluding costs of taxation but less than total including those costs - whether "taxed costs" in O.91 r.89 means the amount stated in the certificate of taxation RSC O.91 r.89
Counsel:	Mr S. Keim for the Appellant Mr Luxton for the Respondent
Solicitors:	Messrs. O'Mara, Patterson & Perrier for the Appellant Messrs. Murrell Stephenson for the Respondent

Hearing Date: 17th March, 1992