PARTIES: POTTS, Joshua Andrew v FROST, Darren Stephen Ian
FILE NO/S: 219/2002 DELIVERED ON: 4 June 2012 DELIVERED AT: Hobart HEARING DATE: 13 December 2011 JUDGMENT OF: Porter J
Procedure – Costs – Departing from the general rule – Conduct of parties – Offer of compromise – Validity of offer – Claim for damages for personal injuries – Term of offer to plaintiff that no proceedings to enforce judgment to be taken while defendant acting in accordance with statutory obligations as to repayments – Term did not seek to preclude plaintiff from right to statutory interest on judgment – Any ambiguity not sufficient to invalidate offer.
Procedure – Costs – Departing from the general rule – Conduct of parties – Offer of compromise – Validity of offer – Term of offer that no proceedings to enforce judgment to be taken while defendant acting in accordance with statutory obligations as to repayments – Term made the offer of compromise not one in respect "of a claim" within the meaning of the rules – Offer of no effect under the rules – Consideration of offer as Calderbank offer.
Procedure – Costs – Departing from the general rule – Conduct of parties – Offer of compromise – Statutory post-judgment interest not to be taken into account when assessing whether a judgment was more or less favourable than the terms of an offer.
Aust Dig Procedure [576]
REPRESENTATION:
Counsel: Plaintiff: C H Hobbs Defendant: K E Read Solicitors: Plaintiff: Ware & Partners Defendant: Dobson Mitchell & Allport
Judgment Number: [2012] TASSC 32 Number of paragraphs: 44
Serial No: 32/2012 File No 219/2002
JOSHUA ANDREW POTTS v DARREN STEPHEN IAN FROST
REASONS FOR JUDGMENT PORTER J
4 June 2012
Introduction
Following the trial of this action for damages in negligence, the plaintiff succeeded on liability and was awarded damages of $1,840,335: [2011] TASSC 55. Judgment was delivered on 5 October 2011 and formally entered for that amount on 10 October 2011. This is an application by the defendant for an order for costs in his favour. The order sought relates to only part of the costs of the action.
The judgment sum was less than a formal offer of compromise made by the defendant on 29 June 2010, in the sum of $2 million. The final judgment sum was arrived at by the reduction of assessed damages of approximately $2.93 million by 30% for contributory negligence, and the deduction of benefits paid by the Motor Accidents Insurance Board of approximately $209,000.
On 19 October 2011, I made an order that the defendant pay the plaintiff's costs of the action up to and including…
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.
Continue reading Potts v Frost (No 2)
Sign in free to access the full text
Details
AGLC
Potts v Frost (No 2) [2012] TASSC 32
Case
[2012] TASSC 32
Decision Date
CaseChat Overview and Summary
In the case of Potts v Frost (No 2), the Supreme Court of Tasmania dealt with an application for costs by the defendant, Darren Stephen Ian Frost, in relation to an action for damages for personal injuries. The plaintiff, Joshua Andrew Potts, had succeeded on liability and was awarded damages of $1,840,335. The defendant had made an offer of compromise of $2 million on 29 June 2010, which was not accepted by the plaintiff. The court was required to decide whether the plaintiff was entitled to costs from 30 June 2010 or whether the defendant was entitled to an order for costs in his favour. The court held that the offer of compromise did not comply with r280 of the Supreme Court Rules 2000 (Tas) because it sought to preclude the plaintiff from his entitlement to statutory interest, and therefore had no effect under the rules. The court found that post-judgment interest did not fall within what might be encompassed by "a claim" within the meaning of r280(1). As a result, the defendant's presumptive entitlement to costs under r289(2) did not apply, but the general discretion as to costs was enlivened. The court also found that the judgment was no more favourable to the plaintiff than the terms of the offer because statutory post-judgment interest could not be taken into account when assessing whether a judgment was more or less favourable than the terms of an offer. The court concluded that it was proper for the plaintiff to pay the defendant's costs of the action on a party and party basis from 30 June 2010.