St Clair v Timtalla Pty Ltd (No 2)

Case [2010] QSC 480

SUPREME COURT OF QUEENSLAND

CITATION:

St Clair v Timtalla Pty Ltd & Anor (No 2) [2010] QSC 480

PARTIES:

ARCHIE STEPHEN ST CLAIR
(plaintiff)

v   

TIMTALLA PTY LTD
(first defendant)

AND

AVAID PTY LTD (UNDER EXTERNAL ADMINISTRATION)

(second defendant)

AND

MALEBA OPERATIONS PTY LTD

(third defendant)

AND

AVSERVE PTY LTD (UNDER EXTERNAL ADMINISTRATION)

(fourth defendant)

AND

AIRCRAFT TECHNICIANS OF AUSTRALIA PTY LTD
(fifth defendant)

FILE NO/S:

BS5637 of 1996

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

31 August 2010 (final submissions)

JUDGE:

Martin J

ORDER:

1.   THE FIFTH DEFENDANT PAY THE PLAINTIFF’S COSTS OF AND INCIDENTAL TO THIS ACTION ON AN INDEMNITY BASIS FROM THE DATE OF THE PLAINTIFF’S OFFER AND ON THE STANDARD BASIS FOR THE BALANCE.

2.   THE FIFTH DEFENDANT PAY THE FIRST DEFENDANT’S COSTS OF AND INCIDENTAL TO THIS ACTION ON THE STANDARD BASIS.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where the plaintiff made an offer of settlement to the first and fifth defendants – where the offer was not accepted – where the Court awarded damages against the fifth defendant no less favourable than the offer of settlement – whether the fifth defendant should pay indemnity costs

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – OTHER CASES – where the plaintiff was successful at trial against the fifth defendant but not the first defendant – whether the fifth defendant ought to pay the first defendant’s costs – whether a Sanderson order should be made

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PARTIES – OTHER MATTERS – where the second, third and fourth defendants were served but did not ever enter an appearance – where the second, third and fourth defendants never filed Notices of Intention to Defend – whether the words “defendant” and “defendants” in Ch 9, Pt 5 of the Uniform Civil Procedure Rules 1999 (Qld) should be construed as meaning a defendant who has appeared and not someone who has merely been named and served

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PARTIES – PLEADING – STATEMENT OF CLAIM – words and phrases – “and/or” – whether the Statement of Claim alleged the defendants to be jointly or jointly and severally liable – whether an offer to settle was made to all defendants

Uniform Civil Procedure Rules 1999 (Qld), r 135, r 360, r 361, r 363

Besterman v British Motor Cab Co Ltd [1914] 3 KB 181
Bonitto v Fuerst Bros & Co Ltd [1944] AC 75
Bullock v London General Omnibus Company [1907] 1 KB 264
Calderbank v Calderbank [1975] 3 All ER 333
Castro v Hillery [2003] 1 Qd R 651
Commonwealth v Gretton [2008] NSWCA 117
Employers Mutual Liability Insurance Co of Wisconsin v Tollefsen 263 NW 376
Fennell v Supervision and…

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Details
AGLC
St Clair v Timtalla Pty Ltd (No 2) [2010] QSC 480
Case
[2010] QSC 480
Decision Date

CaseChat Overview and Summary

In the case of St Clair v Timtalla Pty Ltd (No 2), the plaintiff, St Clair, brought an action against Timtalla Pty Ltd and four other defendants. The nature of the dispute involved claims for damages arising from alleged breaches of contract and misrepresentation. The matter was heard in the Supreme Court of Queensland.

The primary legal issues before the court were whether the fifth defendant should be ordered to pay indemnity costs to the plaintiff, whether the fifth defendant should also pay the costs of the first defendant, and the interpretation of certain procedural rules regarding the definition of "defendant" in the context of the Uniform Civil Procedure Rules 1999 (Qld). Additionally, the court had to determine whether the offer of settlement made by the plaintiff to the first and fifth defendants was addressed to all defendants collectively or individually.

The court found that the fifth defendant should pay the plaintiff's costs on an indemnity basis due to the offer of settlement, which was not accepted. The court also determined that the fifth defendant should pay the first defendant's costs on the standard basis, considering the interrelationship between the defendants. Regarding the interpretation of the Uniform Civil Procedure Rules, the court held that "defendant" and "defendants" referred to those who had entered an appearance in the proceedings, not merely those who had been served. Finally, the court found that the offer of settlement was made to all defendants collectively.

The court's orders included that the fifth defendant pay the plaintiff's costs on an indemnity basis and the first defendant's costs on the standard basis. The court also made a determination on the interpretation of procedural rules regarding the definition of "defendant".

Orders

Orders of the court

1. THE FIFTH DEFENDANT PAY THE PLAINTIFF’S COSTS OF AND INCIDENTAL TO THIS ACTION ON AN INDEMNITY BASIS FROM THE DATE OF THE PLAINTIFF’S OFFER AND ON THE STANDARD BASIS FOR THE BALANCE.

2. THE FIFTH DEFENDANT PAY THE FIRST DEFENDANT’S COSTS OF AND INCIDENTAL TO THIS ACTION ON THE STANDARD BASIS.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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