PFJV Pty Ltd v Bartter Enterprises Pty Ltd (No 2)

SUPREME COURT OF QUEENSLAND

CITATION:

PFJV Pty Ltd v Bartter Enterprises Pty Ltd (No 2) [2024] QSC 145

PARTIES:

PFJV PTY LTD (ACN 614 586 4444) AS TRUSTEE FOR THE DONNYBROOK RAINBOW TRUST AND THE DONNYBROOK KUIKENS UNIT TRUST

(Plaintiff)

v

BARTTER ENTERPRISES PTY LTD (ACN 000 451 374)

(Defendant)

FILE NO/S:

BS 3716 of 2019

DIVISION:

Trial Division

PROCEEDING:

Trial

DELIVERED ON:

10 July 2024

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Bowskill CJ

ORDER:

The plaintiff pay the defendant’s costs of the proceeding, including reserved costs and including the costs of any past applications for which no contrary orders were made, with such costs to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – UNREASONABLE REFUSAL OF OFFER – where the plaintiff’s claim was dismissed following a trial – where the defendant made Calderbank offers to settle on three prior occasions – whether the plaintiff’s rejection of the offers was unreasonable, such as to justify departure from the usual rule that the unsuccessful plaintiff pay the defendant’s costs on the standard basis

Smith v Wessling-Smith [2017] QSC 189
Springfield City Group Pty Ltd v Pipe Networks Pty Ltd (No 2) [2022] QSC 299

COUNSEL:

G A Thompson KC and A G Psaltis for the plaintiff

G A Sirtes SC and A Smorchevsky for the defendant

SOLICITORS:

Colin Biggers & Paisley for the plaintiff

Prandium Legal for the defendant

1. On 6 June 2024, I delivered judgment in this matter: PFJV Pty Ltd v Bartter Enterprises [2024] QSC 114. The plaintiff’s claim was dismissed. The parties were invited to make submissions in relation to the costs of the proceeding, with the question of costs to be determined on the papers, having regard to those submissions.

2. The plaintiff accepts it must pay the defendant’s costs of the proceeding, including reserved costs.  The issue to be determined is the basis on which those costs should be assessed – the standard basis, as the plaintiff submits, or the indemnity basis, as the defendant submits, having regard to various settlement offers made by the defendant.

3. This proceeding was commenced on 8 April 2019.  On 21 May 2019, before a defence had been filed, the defendant made an offer to pay the plaintiff $155,954.73, with no order as to costs.  The context of that offer is explained in the affidavit of Mr McKeough, the solicitor for the defendant, sworn on 14 June 2024.  Following the closure of the Wulkuraka plant, the defendant found itself in dispute with a number of broiler chicken growers in south-east Queensland.  In late 2017 and early 2018, it engaged in mediation and made offers to resolve those disputes by distribution of an overall settlement sum of $1.5 million, apportioned between the various growers.  If the plaintiff had accepted the offer made in that context (which of course it did not), it would…