Reeves v O'Riley

Case [2013] QCA 285

SUPREME COURT OF QUEENSLAND

CITATION:

Reeves v O’Riley [2013] QCA 285

PARTIES:

SUSAN FLORANCE REEVES (as Executrix of the will of GARY EDWARD PERRY deceased)
(appellant)
v
SYLVIA LOUISE O’RILEY
(respondent)

FILE NO/S:

Appeal No 533 of 2013
DC No 363 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal - Further Order

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

1 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Holmes and Muir JJA and Mullins J
Judgment of the Court

ORDER:

There is no variation as to the order in the original judgment.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellant’s appeal was dismissed, with costs – where leave was given to the parties to make submissions as to whether costs should be awarded on an indemnity basis – where the respondent’s application for indemnity costs was made on the basis of the appellant’s refusal of a Calderbank offer – whether the conduct of the appellant in refusing the offer was “plainly unreasonable” so as to warrant a departure from the usual order for costs – whether the appellant had any real prospect of success – whether costs should be awarded on an indemnity basis

Uniform Civil Procedure Rules 1999 (Qld), Chapter 9 Part 5

Calderbank v Calderbank [1975] 3 WLR 586, cited
Deepcliffe Pty Ltd & Anor v The Council of the City of Gold Coast & Anor[2001] QCA 396, cited
Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298, considered
Reeves v O’Riley[2013] QCA 229, related
Tector v FAI General Insurance Company Ltd [2001] 2 Qd R 463; [2000] QCA 426, cited
Verhagen & Anor v Millard[2013] QCA 202, cited

COUNSEL:

No appearance by the appellant, the appellant’s submissions were heard on the papers
No appearance by the respondent, the respondent’s submissions were heard on the papers

SOLICITORS:

Bill Cooper & Associates for the appellant
Purcell Taylor Lawyers for the respondent

  1. THE COURT:  On 23 August 2013, this court dismissed with costs the appellant’s appeal against a declaration that certain correspondence constituted a binding agreement for the transfer of property.[1]  Leave was given to the parties to make submissions as to whether those costs should be awarded on an indemnity basis, notwithstanding the respondent’s omission to comply with Practice Direction No 3 of 2013 by making the application at the hearing of the appeal.[2]

    [2]That failure does not necessarily preclude the seeking of the indemnity costs order:  Verhagen & Anor v Millard [2013] QCA 202.

  1. The respondent’s application for indemnity costs was made on the basis of the appellant’s refusal of a Calderbank[3] offer.  Within a week of the filing of her notice of appeal, the respondent made an offer to settle the appeal on terms that the…

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AGLC
Reeves v O’Riley [2013] QCA 285
Case
[2013] QCA 285
Decision Date

CaseChat Overview and Summary

The appeal was brought by Reeves against O'Riley, with the dispute centering around the refusal of a Calderbank offer by the appellant and the subsequent refusal to award indemnity costs by the primary judge. The matter was heard in the Queensland Court of Appeal. The court was required to determine whether the appellant's conduct in refusing the Calderbank offer was "plainly unreasonable" and whether the refusal warranted a departure from the usual order for costs. Additionally, the court had to assess whether the appellant had any real prospect of success and if costs should be awarded on an indemnity basis.

The court examined the circumstances under which the Calderbank offer was made and whether it was reasonable for the appellant to refuse it. The court also considered the factors relevant to assessing whether the appellant had a real prospect of success, including the strength of the evidence and the legal arguments presented. The court found that the appellant's refusal of the Calderbank offer was not plainly unreasonable and that there was a real prospect of success, albeit slim. Consequently, the court held that the refusal did not warrant a departure from the usual order for costs.

The appeal was dismissed, and the costs were to be determined in accordance with the original judgment. The court did not find the appellant's conduct to be plainly unreasonable and did not award indemnity costs. The court's decision was based on the evidence and arguments presented, and the refusal of the Calderbank offer did not significantly impact the overall outcome. The orders made by the primary judge remained unchanged.

Orders

Orders of the court

There is no variation as to the order in the original judgment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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