Sawyer v Steeplechase Pty Ltd [No 2]

[2025] QCA 15

SUPREME COURT OF QUEENSLAND

CITATION:	Sawyer v Steeplechase Pty Ltd [No 2] [2025] QCA 15
PARTIES:	LUKE ANDREW SAWYER (appellant) v STEEPLECHASE PTY LTD ACN 109 392 449 (respondent)
FILE NO/S:	Appeal No 10373 of 2024 SC No 8878 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Order
ORIGINATING COURT:	Supreme Court at Brisbane – [2024] QSC 142 (Crowley J)
DELIVERED ON:	25 February 2025
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Bowskill CJ and Boddice JA and Bradley J
ORDER:	The order made on 24 January 2025 that the appellant pay the respondent’s costs; but there be no order as to the costs of the notice of contention, remains.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURTS AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – GENERALLY – where the application for an appeal was dismissed – where the Court ordered the appellant pay the respondent’s costs – where the respondent sought a further hearing to vary the order on costs – where the respondent gave a Calderbank offer to the appellant – where the Calderbank offer was given five days after the notice of appeal was filed – where the offer was open for eight days – whether the original costs order should be varied so that the appellant pay the respondents costs on an indemnity basis
COUNSEL:	T A Nielsen, with S B Smith, for the appellant G A Thompson KC, with M T O’Sullivan, for the respondent
SOLICITORS:	Brighton Langley Law for the appellant Mills Oakley for the respondent

1. THE COURT:  On 24 January 2025, the Court ordered that the appeal and the cross-appeal be dismissed and that the appellant pay the respondent’s costs of the appeal, but there be no order as to the costs of the notice of contention (which was treated as a cross-appeal).  On 31 January 2025, the solicitor for the respondent contacted the Court of Appeal Registry to request that the respondent be heard to vary the order as to costs.  The Court subsequently made directions for the filing of submissions, on the basis the matter would be dealt with on the papers.

2. The respondent seeks to have the order as to costs set aside, and replaced with an order that the appellant pay the respondent’s costs of the appeal on the indemnity basis.  It relies upon a Calderbank offer, made five days after the notice of appeal was filed, inviting the appellant to discontinue the appeal, with each party bearing its own costs to that point.  The offer was left open for eight days.  The appellant submits the order as made by the Court should remain, on the basis that it was not unreasonable for the appellant to reject that offer, given the early stage at which it was made, which was before any material had been filed in the appeal, let alone the notice of contention (cross-appeal).

3. The Court is not satisfied that an order for indemnity costs is appropriate in the circumstances of this case.  As already noted, the offer was made at a very early stage, before any material – or the notice of contention – had been filed.  It was not unreasonable for the appellant to have rejected the offer at that time.  Although ultimately unsuccessful, the appeal was not so lacking in merit, or doomed to fail, that the appellant should reasonably have capitulated at that early stage.  It is perhaps an indication of the respondent’s perception that there may be some merit in the appeal that it filed a notice of contention (which was really a cross-appeal).

4. The order as to costs, made on 24 January 2025, remains.