Pollard v Simpson and Anor (No 2)

DISTRICT COURT OF QUEENSLAND

CITATION:

Pollard v Simpson & Anor (No 2)  [2013] QDC 270

PARTIES:

Christine Mary Pollard

(Plaintiff)

v

John Frederick Simpson

(First Defendant)

&

AAI Limited ABN 48 005 297 807

(Second Defendant)

FILE NO/S:

106/11

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court in Mackay

DELIVERED ON:

1 November 2013

DELIVERED AT:

Maryborough

HEARING DATE:

On the papers

JUDGE:

Kingham DCJ

ORDERS:

Judgment is entered for Mrs Pollard in the sum of $395,301.92; and1.      

The second defendant must pay the plaintiff’s costs of and incidental to the proceedings assessed on the indemnity basis, if not agreed.2.      

CATCHWORDS:

CIVIL – COSTS – INDEMNITY COSTS – PLAINTIFF OFFER TO SETTLE – RULE 360 UNIFORM CIVIL PROCEDURE RULES 1999 (QLD) – where the plaintiff made an offer to settle before trial – where the second defendant did not accept that offer – where the plaintiff succeeded at trial – where judgment was no less favourable to the plaintiff than the terms of the offer to settle – where r 360 provides the costs order that must be made unless the court considers another order is appropriate – whether the plaintiff is entitled to costs – whether the costs should be awarded on the indemnity basis.

Uniform Civil Procedure Rules 1999 (Qld), r 360.

Ross v Suncorp Metway Insurance Ltd [2002] QCA 93, distinguished.

COUNSEL:

Mr J.J. Wiltshire for the Plaintiff.

Mr R.D. Green for the Defendants.

SOLICITORS:

Shine Lawyers for the Plaintiff.

Grant & Simpson Lawyers for the Defendants.

1. I found for Mrs Pollard on her claim for damages arising out of a motor vehicle accident and invited the parties to submit agreed orders on quantum, including interest, to give effect to my findings. Having heard from the parties, judgment will be entered for Mrs Pollard in the sum of $395,301.92.

1. The parties do not agree about the costs. Mrs Pollard seeks her costs on an indemnity basis. AAI Limited resists that application.

1. On 23 February 2012 Mrs Pollard offered to settle her claim for the sum of $300,000 plus costs assessed on the standard basis. The judgment sum awarded to her is more favourable than that offer. Pursuant to Rule 360 UCPR, the Court must award costs on the indemnity basis unless the defendant shows another order is appropriate in the circumstances.[1]

   [1] Rule 360 Uniform Civil Procedure Rules 1999 (Qld).

1. The defendant argues costs should be awarded on the standard basis for three reasons.

1. Firstly, it argues that limitations in Mrs Pollard's disclosure in relation to the claim for economic loss prevented the defendant from properly assessing that aspect of the claim. It relied on deficiencies in the material provided by Mrs Pollard to the forensic accountant engaged by her. They were identified in a letter from an accountant engaged by the defendant after it had signed the Request for Trial Date. During her evidence, Mrs Pollard explained the steps she took to comply with the defendant's late requests for information. The defendant did…