Sutton v Hunter (No 2)

[2021] QSC 268

SUPREME COURT OF QUEENSLAND

CITATION:

Sutton v Hunter (No 2) [2021] QSC 268

PARTIES:

KATE ANN SUTTON

(plaintiff)

v
LAUREN NICOLE HUNTER

(First Defendant)

AND

ALLIANZ AUSTRALIA INSURANCE LIMITED

(ACN 000 122 850)

(Second Defendant)

FILE NO/S:

BD 10195/2020

DIVISION:

Trial Division

PROCEEDING:

Claim BD10195/20

ORIGINATING COURT:

District Court at Southport (transferred on 6 September 2021)

DELIVERED ON:

22 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

Written Submissions

JUDGE:

Freeburn J

ORDER:

The second defendant pay the plaintiff’s costs on the District Court scale, excluding:

(a)   the costs of the application to transfer the proceeding from the District Court (at Southport) to the Supreme Court; and

(b)  the fees and expenses incurred for the expert reports of Mr Lee of Vincents, and any costs associated with obtaining those expert reports, or associated with preparing and leading that evidence.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN THE STATE AND TERRITORY COURTS – COSTS – RELEVANT CONSIDERATIONS GENERALLY – POWER TO ORDER – Where plaintiff was successful in the primary judgment – Whether applicant gave respondent a mandatory final offer – Whether claim falls within District Court or Supreme Court Jurisdiction – Whether order as per costs should be made – Whether the plaintiff ought to recover the costs of an expert’s evidence where that evidence was deemed inadmissible.

Uniform Civil Procedure Rules 1999 (Qld), r 360
Motor Accident Insurance Act 1994 (Qld), s 51C

Lawes v Nominal Defendant [2007] QSC 103, considered.

Brown v Daniels & Anor (No 2) [2018] QSC 232, followed.

Val Eco Homes Pty Ltd (in liq) v Jason Hall t/a JHL Lawyers [2021] QDC 182, applied

Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111, considered.

COUNSEL:

Mr C Newton
(Plaintiff)

Mr R Morton

(Second Defendant)

SOLICITORS:

Southside Legal
(Plaintiff)

McInnes Wilson

(Second Defendant)

REASONS

Introduction

1. On 7 October 2021, I gave judgment for the plaintiff, Ms Sutton, in the sum of $314,345.[1]  I directed that the parties be heard on costs.

   [1]Sutton v Hunter [2021] QSC 249.

2. Both parties have filed and served written submissions on costs. Ms Sutton’s counsel contends that, having regard to a mandatory final offer pursuant to s 51C of the Motor Accident Insurance Act 1994 (Qld) (the ‘Act’), Ms Sutton ought to have her costs on an indemnity basis. Alternatively, Ms Sutton ought to have her costs on a standard basis. Or, ‘at the very worst’ Ms Sutton ought to have her costs on a standard basis on the District Court Scale.[2]

   [2]Plaintiffs’ Costs Submission at [16].

3. Allianz contends that Ms Sutton’s costs ought to be restricted to costs on a standard basis and that Ms Sutton ought not be able to recover the costs of three specific aspects of the case.[3]  Alternatively, Allianz’s counsel contend the preferred course would be to order that Ms Sutton recover 75% of her standard costs.

   [3]Second Defendant’s Submissions as to costs at [36].

   Section 51C

4. Section 51C(10) of the Act requires that the…