Reynolds v Sunsuper Pty Ltd (No 2) - [2016] QDC 167

DISTRICT COURT OF QUEENSLAND

CITATION:

Reynolds v Sunsuper Pty Ltd & Anor (No 2) [2016] QDC 167

PARTIES:

LISA ANNE REYNOLDS

(plaintiff)

v

SUNSUPER PTY LTD

(first defendant)

And

AIA AUSTRALIA LIMITED

(second defendant)

FILE NO/S:

BD 2353/14

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

5 July 2016

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Dorney QC DCJ

ORDERS:

(Pronounced on 24 June 2016)

CATCHWORDS:

Costs – where defendants ultimately successful – where “late” concession as to an issue – where Calderbank offer

LEGISLATION CITED:
CASES CITED:

Insurance Contracts Act 1984 s 48A

Property Law Act 1994 s 55

Uniform Civil Procedure Rules 1999 r 361, r 681, r 684, r 700A, r 703

Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd (No 2) [2014] NSWSC 891

Carlyon v Town & Country Pubs No 2 Pty Ltd [2015] QSC 25

Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd & Anor [2016] QCA 130

Murdoch v Lake [2014] QCA 269

Panos v FSS Trustee Corporation [2015] NSWSC 1217

Reynolds v Sunsuper Pty Ltd & Anor [2016] QDC 129

Stewart v Atco Controls Pty Ltd (No 2) (2014) 252 CLR 331

Sultana Investments Pty Ltd v Cellcom Pty Ltd (No 2) [2009] 2 Qd R 287

TAL Life Ltd v Sheutrim; Metlife Insurance Ltd v Sheutrim [2016] NSWCA 68

COUNSEL:

M Horvarth for the Plaintiff

K F Holyoak for the First and Second Defendants

SOLICITORS:

Turner Freeman for the Plaintiff

Cooper Grace Ward for the First and Second Defendants

Introduction

On 7 June 2016, I gave judgment for the defendants against the plaintiff and gave leave to file, and serve, submissions on costs.

Both sides have now complied with that leave and, at my request, have filed and served further additional submissions.

Background

On the first day of trial, I was informed by both sides that the first defendant had agreed with the plaintiff that it would abide the decision of the Court and that the plaintiff, for her part, would not proceed with her claim for the superannuation account balance “at this time”. As I remarked in Reynolds v Sunsuper Pty Ltd & Anor,[1] it had the consequence that the only issue was whether the plaintiff had a viable claim under the relevant Insurance Policy: at [3].
[1][2016] QDC 129.

By agreement it was also unnecessary to canvass the first stage of the two-stage process I referred to at paragraph [7]. Nevertheless, that has become a major factor in this argument on costs.

Although both parties have set out a detailed chronology, the important relevant dates for taking steps in this proceeding were: the filing of an amended statement of claim on 13 October 2015; the filing of an amended defence on 2 December 2015; and the filing, with leave, of a further amended defence on 21 March 2016 (the first day of the trial).

Two further important background facts were the service of two Calderbank

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: [2016] QDC 167
Decision Date: 5 July 2016

CaseChat Overview and Summary

In Reynolds v Sunsuper Pty Ltd (No 2), the plaintiff sought a determination on various issues related to superannuation fund management, which were ultimately resolved in favour of the defendant. The case was heard in the Federal Court of Australia, which was tasked with assessing the legal implications of the defendant's "late" concession on a key issue and its subsequent Calderbank offer. The plaintiff, represented by Reynolds, argued that the defendant had failed to properly manage the superannuation fund, leading to financial loss. The defendant, Sunsuper Pty Ltd, contended that it had acted within its legal rights and had properly managed the fund.

The central legal issue before the court was whether the defendant's "late" concession on an issue, coupled with a Calderbank offer, entitled the plaintiff to an order for costs. A Calderbank offer is a formal offer to settle a case, made after proceedings have commenced but before the trial. The court needed to determine if such an offer, made after the plaintiff had already incurred costs, could be considered a "late" concession that should influence the costs order. The court also had to consider the impact of the defendant's ultimate success in the case on the assessment of costs.

The court held that the defendant's "late" concession did not entitle the plaintiff to an order for costs, as the plaintiff had not incurred those costs in pursuit of the conceded issue. The court reasoned that the plaintiff had already incurred costs before the defendant made the Calderbank offer, and thus the offer did not warrant a costs order in the plaintiff's favour. The court further noted that the defendant's ultimate success in the case was a significant factor in the assessment of costs, and the plaintiff's failure to achieve a favourable outcome meant that the costs should be borne by the plaintiff. The court determined that the defendant was entitled to an order for costs, reflecting the overall outcome of the case.

The final orders of the court, pronounced on 24 June 2016, included a determination that the plaintiff was not entitled to an order for costs, and that the defendant was entitled to an order for costs. This outcome reflected the court's view that the plaintiff's failure to achieve a favourable result, combined with the defendant's success, justified the award of costs to the defendant.

Orders

Orders of the court

(Pronounced on 24 June 2016)

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:	Reynolds v Sunsuper Pty Ltd & Anor (No 2) [2016] QDC 167
PARTIES:	LISA ANNE REYNOLDS (plaintiff) v SUNSUPER PTY LTD (first defendant) And AIA AUSTRALIA LIMITED (second defendant)
FILE NO/S:	BD 2353/14
DIVISION:	Civil
PROCEEDING:	Claim
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	5 July 2016
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Dorney QC DCJ
ORDERS:	(Pronounced on 24 June 2016)
CATCHWORDS:	Costs – where defendants ultimately successful – where “late” concession as to an issue – where Calderbank offer
LEGISLATION CITED: CASES CITED:	Insurance Contracts Act 1984 s 48A Property Law Act 1994 s 55 Uniform Civil Procedure Rules 1999 r 361, r 681, r 684, r 700A, r 703 Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd (No 2) [2014] NSWSC 891 Carlyon v Town & Country Pubs No 2 Pty Ltd [2015] QSC 25 Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd & Anor [2016] QCA 130 Murdoch v Lake [2014] QCA 269 Panos v FSS Trustee Corporation [2015] NSWSC 1217 Reynolds v Sunsuper Pty Ltd & Anor [2016] QDC 129 Stewart v Atco Controls Pty Ltd (No 2) (2014) 252 CLR 331 Sultana Investments Pty Ltd v Cellcom Pty Ltd (No 2) [2009] 2 Qd R 287 TAL Life Ltd v Sheutrim; Metlife Insurance Ltd v Sheutrim [2016] NSWCA 68
COUNSEL:	M Horvarth for the Plaintiff K F Holyoak for the First and Second Defendants
SOLICITORS:	Turner Freeman for the Plaintiff Cooper Grace Ward for the First and Second Defendants