Steer v McLellan (No 2)

[2016] QDC 305

DISTRICT COURT OF QUEENSLAND

CITATION:

Steer v McLellan (No 2) [2016] QDC 305

PARTIES:

HERBERT ALFRED ERNEST STEER

and

LYNETTE ELIZABETH STEER

(plaintiffs)

v

JENNIFER LILLIAN McLELLAN

(first defendant)

and

IAIN McLELLAN

(second defendant)

FILE NO/S:

1996/14

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

28 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Sheridan DCJ

ORDER:

The plaintiffs are to pay the defendants’ costs of and incidental to the proceeding to be assessed on an indemnity basis.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON AN INDEMNITY BASIS – where the plaintiffs were fixated upon any noise made by the defendants – where the plaintiffs complained to police about the noise from the defendants but the police did not consider the noise to be excessive – whether the conduct of the plaintiffs was unreasonable – whether indemnity costs should be ordered

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON AN INDEMNITY BASIS – where the defendants made an offer to the plaintiffs partway through the trial – whether the refusal to accept the offer was unreasonable – whether indemnity costs should be ordered

Uniform Civil Procedure Rules 1999 (Qld), r 361(3)

Botany Municipal Council v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412, considered
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, cited
Emmanuel Management Pty Ltd v Foster’s Brewing Group Ltd [2003] QSC 299, considered
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, considered
Hamcor Pty Ltd & Anor v State of Queensland & Ors [2015] QSC 69, applied
Grice v Queensland [2005] QCA 298, applied
J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (No 2) (1993) 26 IR 301, considered
Rosniak v Government Insurance Office (1997) 41 NSWLR 608, applied

Smits v Tabone [2007] QCA 337, applied

COUNSEL:

M J Smith for the plaintiffs

S S Monks for the defendants

SOLICITORS:

Morton & Morton for the plaintiffs

Campbell Standish Partners for the defendants

1. Judgement in this matter was given on 14 October 2016.  The plaintiffs’ claim was dismissed.  The defendants were successful on all issues argued at trial.  Orders were made for the parties to make written submissions on costs.

1. In their submissions, the plaintiffs concede that they should be ordered to pay the defendants’ costs on a standard basis. 

1. The defendants submit that an indemnity costs order should be made.  The defendants rely on one or more of the following grounds:

(a)        the plaintiffs’ case was a hopeless proceeding;

(b)        the proceedings were brought or continued in a way that was unreasonable, or for an ulterior motive; and

(c)        the plaintiffs’ unreasonably refused an offer of settlement.

1. On 4 September 2015, the defendants made an offer to settle the proceedings by the plaintiffs agreeing to the entry of…