MSW Property Pty Ltd v Law Mortgages Queensland Pty Ltd

[2002] QSC 240

State Reporting Bureau

Transcript of Proceedings

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[2002] QSC 240

SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION

WILSON J

No S892 of 2001

MSW PROPERTY PTY LTD (ACN 063 814	Plaintiff
479)
and
LAW MORTGAGES QUEENSLAND PTY LTD	Defendant
(ACN 010 858 107)
BRISBANE ..DATE 12/08/2002
JUDGMENT

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12082002 T02/VC2 M/T 1/2002 (Wilson J)

HER HONOUR: When I delivered judgment in this matter on 7	1
August 2002, I said in paragraph 30 of my reasons that I considered the plaintiff was entitled to declarations in terms of paragraphs A and B of the claim filed on 25 January 2001 and to costs. Counsel intimated that there may be argument

10

about costs having regard to an offer that had been made under
chapter 9 part 5 of the UCPR. That argument has taken place

before me this morning.

The claim was filed on 25 January 2001. The proceeding

20

progressed through interlocutory stages. There was a an offer pursuant to chapter 9 part 5. The matter then went to trial before me on 8 and 9 April 2002.
mediation in December 2001 at which issues were not resolved.

30

This morning Mr Bland of counsel for the defendant conceded that the requirements of rule 360 of the UCPR have been satisfied, in that the plaintiff made an offer not accepted by the defendant and the plaintiff obtained a judgment no less

40

favourable than the offer to settle; further, the plaintiff
was at all material times willing and able to carry out what
was proposed in the offer. The offer would have resulted in

the plaintiff accepting a "discount" of $80,000.

50

Rule 360(1) provides that in those circumstances the Court must order the defendant to pay the plaintiff's costs calculated on the indemnity basis unless the defendant shows another order for costs is appropriate in the circumstances.

JUDGMENT

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12082002 T02/VC2 M/T 1/2002 (Wilson J)

Mr Bland submitted that another order, by which I assumed he	1
meant costs on the standard basis, is appropriate in the present circumstances. In his submission rule 360 is premised upon the requirement that the parties act reasonably in the litigation. He submitted that his client had acted reasonably

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because the case that had been presented at the trial was
clearly one that was arguable. His alternative submission was
that if indemnity costs were to be ordered, they should run,
not from the inception of the proceedings, but from the making

of the offer.

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In my view rule 360 is an example of the philosophy set out in rule 5 of the UCPR that proceedings should be resolved justly and expeditiously and with a minimum of expense. The rule is clearly designed to encourage compromise and those responsible

30

for drawing the rule have made a clear policy choice that in
the case of an offer by a plaintiff, if the preconditions are
made out, indemnity costs should follow, and they should run
from the inception of the proceedings. This is in contrast

with the position of a defendant who makes a successful offer.

40

In that case the costs are on the standard basis and there is a cut off point of the making of the offer.

In my view the mere fact that the case was arguable is not sufficient to persuade me that some other order is appropriate

50

in the circumstances. Accordingly, I have concluded that the
plaintiff should receive an order for indemnity costs of and
incidental to the proceeding, including reserved costs, and

that those indemnity costs should run from the inception of

JUDGMENT

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12082002 T02/VC2 M/T 1/2002 (Wilson J)

the proceeding.	1
Now, I have before me a draft order which makes allowance for that. I shall initial the draft and have it placed with the papers. I should really date it today, I think, Gentlemen,

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rather than 7 August.

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30

40

50

JUDGMENT

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