Schmidt v Alderson

[1999] QCA 38

IN THE COURT OF APPEAL	99.38
SUPREME COURT OF QUEENSLAND

Appeal No. 7264 of 1997

Brisbane

[Schmidt v Alderson]

BETWEEN:

MAXWELL GEORGE SCHMIDT

(Defendant) Appellant

AND:

ADRIAN KEITH ALDERSON

(Plaintiff)	Respondent
McMurdo P Thomas JA Ambrose J

Judgment delivered 26 February 1999.

Further Order delivered 19 March 1999.

Further Order of the Court.

1.          APPELLANT TO PAY RESPONDENT'S COSTS OF THE ACTION TO BE TAXED TO 12 JULY 1996.

2.          RESPONDENT TO PAY APPELLANT'S TAXED COSTS OF THE ACTION THEREAFTER (BUT NOT ANY COSTS IN RELATION TO SECOND DAY OF HEARING).

3.          APPELLANT TO PAY TO RESPONDENT THE COSTS THROWN AWAY BY ADJOURNMENT OF 29 APRIL 1997.

reserved costs to show some reason why they should be ordered.

Counsel:	Mr SC Williams QC, with him Mr M O'Sullivan for the appellant. Mr JJ Clifford QC, with him Mr DGH Turnbull for the respondent.
Solicitors:	Crown Solicitor for the appellant. O'Shea & Dwyer for the respondent.
Hearing Date:	11 September 1998.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 7264 of 1997

Brisbane

Before McMurdo P
Thomas JA
Ambrose J

[Schmidt v Alderson]

BETWEEN:

MAXWELL GEORGE SCHMIDT

(Defendant) Appellant

AND:

ADRIAN KEITH ALDERSON

(Plaintiff) Respondent

REASONS FOR FURTHER ORDER - THE COURT

Judgment delivered 26 February 1999 Further order delivered 19 March 1999

1. The result of the appeal has been to reduce the judgment below from $558,990.08 to

   $465,490.08.

2. Before trial, on 12 July 1996, the appellant/defendant served on the respondent/plaintiff a

   formal offer to settle the action under Order 26. The offer ($500,000.00 plus costs to be taxed)

   was not accepted.

3. The effect of Order 26 Rule 9(2) in these circumstances is to require an order that the appellant pay the respondent's party and party costs up to the date of service of the offer to settle, and for the respondent to pay the appellant's party and party costs thereafter, "unless the plaintiff

   [i.e. respondent] shows that another order for costs is proper in the circumstances". In the present

   case no ground has been advanced upon which any other order should be made.

4. There remain however disputes between the parties as to certain reserved costs, and in

   particular those concerning the adjournment of the trial on the second day. The adjournment was

   granted on the application of the respondent after the appellant advised the respondent's

   representatives of evidence that would be led from Dr Rossato which would cast the case in a

   different light. This evidence had come to the appellant's knowledge through a conference with Dr

   Rossato the previous day. Apart from the argument concerning the adjournment, the whole day

   was lost and the trial resumed two months later. In granting the adjournment the learned trial judge

   observed "I think in the circumstances I will reserve the costs of the adjournment, making it clear

   that at least to date I haven't heard any reason why the defendant [appellant] shouldn't pay the costs

   occasioned by the adjournment".

5. It would seem that Dr Rossato had provided a number of reports to Comcare, all of which

   had been provided to the respondent well before the commencement of the trial. The appellant

   however did not arrange to confer with Dr Rossato until the first day of the trial. The evidence

   could have been obtained by the appellant much earlier. Counsel for the appellant was unable to

   advance any reason why Dr Rossato would not have been prepared to give a report at an earlier

   date on the issue that the appellant now wished to raise. The learned trial judge's reservation of the

   costs was probably influenced by the submission of counsel for the appellant that he wished to

   discuss the matter with Dr Rossato before any final decision was made on the question of costs of

   the adjournment. The appellant's submission on costs does not advance the matter any further. In these circumstances there is no reason why we should differ from the preliminary indication given

   by his Honour in relation to the costs that were thrown away by reason of this adjournment.

   Accordingly there should be a specific order in favour of the respondent with respect to these costs.

6. Apparently orders were made on other occasions reserving costs, but neither party has

   made any submission that would enable this court to determine whether an order should now be

   made for such costs in favour of one party or the other. The appellant however has asked for an

   order which includes all reserved costs after the date of the offer to settle. The respondent however

   resists this on the basis that the appellant has not addressed the subject and submits that in these

   circumstances no specific order should be made for reserved costs. There is, we think, an onus

   upon a party seeking an order for reserved costs to show some reason why they should be ordered.

   In the absence of any information we shall decline to make an order for reserved costs, other than

   those that were reserved concerning the second day of the hearing.

   Order

7	(a)	That the appellant pay the respondent's costs of the action to be taxed to 12 July
1996.
(b)	That the respondent pay the appellant's taxed costs of the action thereafter (but not
any costs in relation to the second day of the hearing).
(c)	That the appellant pay to the respondent the costs thrown away by the adjournment
of 29 April 1997.