Roberts v Juniper (No 2)

[2012] QDC 154

DISTRICT COURT OF QUEENSLAND

CITATION:

Roberts v Juniper (No 2) [2012] QDC 154

PARTIES:

JOHN HARRIS ROBERTS and NGAIRE JEAN ROBERTS
(Plaintiffs)

v

SCOTT CHRISTIAN JUNIPER
(Defendant)

FILE NO/S:

303/2009

DIVISION:

Civil

PROCEEDING:

Costs

ORIGINATING COURT:

Maroochydore District Court

DELIVERED ON:

12 July 2012

DELIVERED AT:

Maroochydore

JUDGE:

Long SC, DCJ

ORDER:

The defendant pay the plaintiffs’ costs of and incidental to the proceeding (including any reserved costs) assessed on the indemnity basis. 

CATCHWORDS:

COSTS – INDEMNITY COSTS – OFFER TO SETTLE – where the plaintiffs were successful on their claim – where offers to settle were made by the plaintiffs prior to trial - whether the judgment was no less favourable than offer to settle - whether the offers satisfy r 360 Uniform Civil Procedure Rules 1999 (Qld) and therefore require an order that the defendant pay the plaintiffs’ costs on the indemnity basis – where the defendant has not made any attempt to demonstrate that such an order is not appropriate.

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld), 357(1), 360(1), 360(2).

CASES:

Castro v Hillery [2003] 1 Qd R 651.

McChesney v Singh [2004] QCA 217.

SOLICITORS:

JHL Lawyers on behalf of the plaintiffs.

Brandon & Gullo Lawyers on behalf of the defendant. 

1. On 14 June 2012 I gave judgment ordering that the defendant pay the plaintiffs the sum of $144,999.42.  That sum was comprised of the following amounts:

$28,245.00      as damages for breach of contract

$67,884.75      as restitution or reparation for use and occupation of real property

$48,869.67      as interest

$144,999.42

1. The parties were then given leave to file further written submissions on costs, with the plaintiff’s submissions to be filed and served within seven days and the defendants, within fourteen days.

1. On 19 June 2012 the plaintiff’s written submissions were received by the court. Included with and referred to in those submissions was a draft and unsworn affidavit of the plaintiff’s solicitor, Mary Jeffries, which exhibited two formal offers to settle the proceeding in which the above mentioned judgment was given. Both offers were expressly issued under chapter 5 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”). That course was adopted because of concern as to the effect of UCPR 357(1), in the absence of the leave of the court to make such an affidavit. Such leave was sought in the event that the defendant disputed the making of those offers.

1. No submissions have been received from the defendant and on 3 July 2012, his solicitors on the court record informed the court that they had not received any further instructions from their client, to make any submissions as to costs. 

1. Consequently, the plaintiff was given leave for Ms Jeffries to swear her affidavit, which was done on 6 July 2012 and the sworn affidavit was filed on 9 July 2012.

1. The unaccepted offers, proved by that affidavit to have been regularly posted to the defendant’s solicitors and therefore and in the absence of contrary proof, taken to have been served at…