O’Brien v Merton and Anor (No.2) - [2020] QDC 320

DISTRICT COURT OF QUEENSLAND

CITATION:

O’Brien v Merton & Anor (No.2) [2020] QDC 320

PARTIES:

IMOGEN SKYE O’BRIEN

(plaintiff)

v

LEANNE EDNA MERTON

(first defendant)

and
ALLIANZ AUSTRALIA INSURANCE LIMITED
(ABN 15 000 122 850)
(second defendant)

FILE NO:

SD304/2019

DIVISION:

Civil

PROCEEDING:

Costs Application

ORIGINATING COURT:

Southport District Court

DELIVERED ON:

11 December 2020

DELIVERED AT:

Southport

HEARING DATES:

1 to 2 October 2020

JUDGE:

Kent QC, DCJ

ORDER:

No costs are to be awarded.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – where the plaintiff was awarded $41,560.00 in damages after a trial arising out of a motor vehicle accident – where the parties were heard as to costs – where the judgment amount was less than the lower limit of $44,070.00 pursuant to s 27 of the Motor Accident Insurance Regulation 2018, less than the plaintiff’s mandatory final offer but more than the insurer’s mandatory final offer – where the judgment amount was more than the defendant’s formal offer under the Uniform Civil Procedure Rules 1999 – whether the court should award indemnity costs to the plaintiff from the date of the formal offer – whether the court should order that no costs be awarded, because the judgment is less than the lower offer limit of $44,070.00 pursuant to s 27 of the Motor Accident Insurance Regulation 2018, and is less than the claimant’s mandatory final offer but more than the insurer’s mandatory final offer (thus, s 55F(2)(a) of the Act is engaged).

LEGISLATION:

Motor Accident Insurance Act 1994, s 4, 51A, 55F
Uniform Civil Procedure Rules 1999, r 5, 353, 355, 360
Motor Accident Insurance Regulation 2018, s 27
Motor Insurance Amendment Bill [2000]

CASES:

Clapham v Butler& Anor(No.2) [2016] QDC 286
Kenny & Anor v Eyears & Anor [2004] QSC 059
Lindsay v Aumaalii & Anor [2004] QDC 028
Windon v Edwards & Anor [2005] QDC 029
Ward v Coomber [2005] QDC 251
Monement v Faux & Anor [2005] QSC 342
Nichols v Curtis and QBE Insurance (Australia) Limited [2010] QDC 34
Ballandis v Swebbs & Anor (No.2) QDC 143

COUNSEL:
A Harris for the plaintiff
M D Holmes for the defendants

SOLICITORS:
Southern Gold Coast Lawyers for the plaintiff
McInnes Wilson Lawyers for the defendants

Introduction

I delivered judgment in this action on 6 November 2020 and indicated that judgment would be given in favour of the plaintiff against the defendants for $41,560 and that I would hear the parties as to costs. Written submissions were subsequently filed.
The plaintiff submits that the relevant background includes a compulsory settlement conference pursuant to s 51A of the Motor Accident Insurance Act 1994 which took place on 21 October 2019. The matter did not resolve but pursuant to the Act mandatory final offers were exchanged. The plaintiff offered to accept $80,000 plus standard costs and the defendants offered to pay $20,000 all inclusive.
Obviously 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.

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Details

Case: [2020] QDC 320
Decision Date: 11 December 2020

CaseChat Overview and Summary

In the case of O’Brien v Merton and Anor (No.2), the plaintiff, O’Brien, sought damages from Merton and another defendant following a motor vehicle accident. The plaintiff was awarded $41,560.00 in damages after a trial. The central issue before the court was the determination of costs. Specifically, the court needed to decide whether indemnity costs should be awarded to the plaintiff from the date of the defendant's formal offer under the Uniform Civil Procedure Rules 1999, given that the judgment amount was less than the lower limit of $44,070.00 pursuant to s 27 of the Motor Accident Insurance Regulation 2018, and whether costs should be awarded at all because the judgment amount was less than the plaintiff’s mandatory final offer but more than the insurer’s mandatory final offer, thus engaging s 55F(2)(a) of the Act.

The court considered the statutory framework governing costs in motor accident cases and the circumstances of the offer and counter-offer process. The court found that the judgment amount did not reach the lower threshold required to award indemnity costs under the Motor Accident Insurance Regulation 2018. Additionally, the court determined that the plaintiff's mandatory final offer was not met, and the judgment amount was less than the lower offer limit of $44,070.00, which further complicated the assessment of costs. Ultimately, the court concluded that no costs should be awarded to either party.

In light of the statutory requirements and the specific circumstances of the case, the court ruled that no costs are to be awarded. This decision was based on the interplay of the Motor Accident Insurance Regulation 2018 and the Uniform Civil Procedure Rules 1999, as well as the specific offer and counter-offer dynamics in the case.

Orders

Orders of the court

No costs are to be awarded.

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:	O’Brien v Merton & Anor (No.2) [2020] QDC 320
PARTIES:	IMOGEN SKYE O’BRIEN (plaintiff) v LEANNE EDNA MERTON (first defendant) and ALLIANZ AUSTRALIA INSURANCE LIMITED (ABN 15 000 122 850) (second defendant)
FILE NO:	SD304/2019
DIVISION:	Civil
PROCEEDING:	Costs Application
ORIGINATING COURT:	Southport District Court
DELIVERED ON:	11 December 2020
DELIVERED AT:	Southport
HEARING DATES:	1 to 2 October 2020
JUDGE:	Kent QC, DCJ
ORDER:	No costs are to be awarded.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – where the plaintiff was awarded $41,560.00 in damages after a trial arising out of a motor vehicle accident – where the parties were heard as to costs – where the judgment amount was less than the lower limit of $44,070.00 pursuant to s 27 of the Motor Accident Insurance Regulation 2018, less than the plaintiff’s mandatory final offer but more than the insurer’s mandatory final offer – where the judgment amount was more than the defendant’s formal offer under the Uniform Civil Procedure Rules 1999 – whether the court should award indemnity costs to the plaintiff from the date of the formal offer – whether the court should order that no costs be awarded, because the judgment is less than the lower offer limit of $44,070.00 pursuant to s 27 of the Motor Accident Insurance Regulation 2018, and is less than the claimant’s mandatory final offer but more than the insurer’s mandatory final offer (thus, s 55F(2)(a) of the Act is engaged).
LEGISLATION:	Motor Accident Insurance Act 1994, s 4, 51A, 55F Uniform Civil Procedure Rules 1999, r 5, 353, 355, 360 Motor Accident Insurance Regulation 2018, s 27 Motor Insurance Amendment Bill [2000]
CASES:	Clapham v Butler& Anor(No.2) [2016] QDC 286 Kenny & Anor v Eyears & Anor [2004] QSC 059 Lindsay v Aumaalii & Anor [2004] QDC 028 Windon v Edwards & Anor [2005] QDC 029 Ward v Coomber [2005] QDC 251 Monement v Faux & Anor [2005] QSC 342 Nichols v Curtis and QBE Insurance (Australia) Limited [2010] QDC 34 Ballandis v Swebbs & Anor (No.2) QDC 143
COUNSEL:	A Harris for the plaintiff M D Holmes for the defendants
SOLICITORS:	Southern Gold Coast Lawyers for the plaintiff McInnes Wilson Lawyers for the defendants