Schofield v Hopman (No 2) - [2017] QSC 324

SUPREME COURT OF QUEENSLAND

CITATION:

Schofield v Hopman & Anor (No 2) [2017] QSC 324

PARTIES:

PETER MICHAEL SCHOFIELD

(Plaintiff)

v

GARY HOPMAN

(First Defendant)

AND

QBE INSURANCE (AUSTRALIA) LIMITED (ABN: 78 003 191 035)
(Second Defendant)

FILE NO/S:

S8 of 2016

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

20 December 2017

DELIVERED AT:

Rockhampton

HEARING DATE:

On the papers – last submission received on 15 December 2017.

JUDGE:

McMeekin J

ORDER:

The plaintiff pay the Defendants’ costs on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – RELEVANT CONSIDERATIONS GENERALLY – where there was judgment for the defendant – where the parties agree that the plaintiff must pay the defendants’ costs – where the offer by the defendants was more favourable than the outcome at trial – where the parties disagree on whether the costs should be on the indemnity basis for the period after the offer of settlement was made – whether costs should be awarded on an indemnity or standard basis

Uniform Civil Procedure Rules 1999 (Qld), r 360, r 361, r 689

2040 Logan Road Pty Ltd v Body Corporate for Paddington Mews CTS 39149 (No 2) [2016] QSC 65, cited
Anderson v AON Risk Services Australia Ltd [2004] QSC 180, cited
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353, cited
Colgate Palmolive Company & Anor v Cussons Pty Limited [1993] FCA 536, cited
Emanuel Management Pty Ltd (in liq) v Foster’s Brewing Group Ltd [2003] QSC 299, cited
Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] 13 VR 435, cited
Mott v Philip & Ors; Prosser v Philip & Ors (No2) [2017] QSC 255, cited
Mizikovsky v Queensland Television Ltd [2014] 1 Qd R 197, cited
Rathie v ING Life Ltd [2004] QSC 146, cited

COUNSEL:

C C Heyworth-Smith QC with M X Kehoe for the Plaintiff

R C Morton for the Defendant

SOLICITORS:

SR Wallace & Wallace for the Plaintiff

Curwoods Lawyers for the Defendant

McMeekin J: I delivered reasons in this matter on 8 December 2017. I gave judgment for the defendants, so dismissing the plaintiff’s claim. I assessed damages in the sum of $760,553.68. The question of the appropriate costs order remained outstanding. The parties have now filed their submissions.

The parties agree that the plaintiff must pay the defendants’ costs but disagree on whether the costs should be on the indemnity basis for the period after an offer of settlement was made by the defendant.

The offer by the defendants was that the plaintiff should accept in full satisfaction of his claim the sum of $70,011 plus standard costs. The offer was made on 18 October 2016 and pursuant to r 361 Uniform Civil Procedure Rules 1999 (Qld). That rule provides:

Costs if offer by defendant
(1)This rule applies if—
(a)the defendant makes an offer that is not accepted by the plaintiff…

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.

Continue reading Schofield v Hopman (No 2)

Details

AGLC: Schofield v Hopman (No 2) [2017] QSC 324
Case: [2017] QSC 324
Decision Date: 20 December 2017

CaseChat Overview and Summary

In Schofield v Hopman (No 2), the plaintiff, Mr Schofield, sought to recover indemnity costs from the defendants, the Hopmans, following a trial in which judgment was entered for the defendants. The parties had previously agreed that Mr Schofield would bear the costs of the defendants, but they disagreed on the basis on which those costs should be assessed. Specifically, they disagreed on whether the costs should be on an indemnity or standard basis for the period after the defendants' offer of settlement.

The legal issue before the court was whether the costs should be assessed on a standard or indemnity basis, considering the offer of settlement made by the defendants, which was more favourable than the outcome at trial. The court was required to determine the relevant considerations in deciding between the indemnity and standard basis for assessing costs in such circumstances.

The court found that the offer of settlement made by the defendants was more favourable than the outcome at trial, which was a relevant consideration in deciding the appropriate basis for assessing costs. However, the court held that the appropriate basis for assessing costs was the standard basis, as the offer of settlement did not significantly influence the outcome of the trial. The court reasoned that the defendants' offer was not so advantageous as to warrant indemnity costs, and the plaintiff's claim for indemnity costs was accordingly dismissed.

The court ordered that the plaintiff pay the defendants' costs on the standard basis, as agreed by the parties, and not on the indemnity basis as sought by the defendants. The court's decision was based on the consideration that the defendants' offer of settlement, while more favourable than the trial outcome, did not significantly influence the result, and thus did not warrant indemnity costs.

Orders

Orders of the court

The plaintiff pay the Defendants’ costs on the standard basis.

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:	Schofield v Hopman & Anor (No 2) [2017] QSC 324
PARTIES:	PETER MICHAEL SCHOFIELD (Plaintiff) v GARY HOPMAN (First Defendant) AND QBE INSURANCE (AUSTRALIA) LIMITED (ABN: 78 003 191 035) (Second Defendant)
FILE NO/S:	S8 of 2016
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Mackay
DELIVERED ON:	20 December 2017
DELIVERED AT:	Rockhampton
HEARING DATE:	On the papers – last submission received on 15 December 2017.
JUDGE:	McMeekin J
ORDER:	The plaintiff pay the Defendants’ costs on the standard basis.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – RELEVANT CONSIDERATIONS GENERALLY – where there was judgment for the defendant – where the parties agree that the plaintiff must pay the defendants’ costs – where the offer by the defendants was more favourable than the outcome at trial – where the parties disagree on whether the costs should be on the indemnity basis for the period after the offer of settlement was made – whether costs should be awarded on an indemnity or standard basis Uniform Civil Procedure Rules 1999 (Qld), r 360, r 361, r 689 2040 Logan Road Pty Ltd v Body Corporate for Paddington Mews CTS 39149 (No 2) [2016] QSC 65, cited Anderson v AON Risk Services Australia Ltd [2004] QSC 180, cited Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353, cited Colgate Palmolive Company & Anor v Cussons Pty Limited [1993] FCA 536, cited Emanuel Management Pty Ltd (in liq) v Foster’s Brewing Group Ltd [2003] QSC 299, cited Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] 13 VR 435, cited Mott v Philip & Ors; Prosser v Philip & Ors (No2) [2017] QSC 255, cited Mizikovsky v Queensland Television Ltd [2014] 1 Qd R 197, cited Rathie v ING Life Ltd [2004] QSC 146, cited
COUNSEL:	C C Heyworth-Smith QC with M X Kehoe for the Plaintiff R C Morton for the Defendant
SOLICITORS:	SR Wallace & Wallace for the Plaintiff Curwoods Lawyers for the Defendant