Thallon Mole Group Pty Ltd v Morton (No 2)

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DISTRICT COURT OF QUEENSLAND

CITATION:

Thallon Mole Group Pty Ltd v Morton (No 2) [2022] QDC 290

PARTIES:

THALLON MOLE GROUP PTY LTD
ACN 104 671 801

(plaintiff)

v
LOUISE MORTON

(defendant)

FILE NO/S:

D2695/19

DIVISION:

Civil Trial

PROCEEDING:

Costs

ORIGINATING COURT:

Brisbane District Registry

DELIVERED ON:

15 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

6 December 2022

JUDGE:

Muir DCJ

ORDER:

Each party bears their own costs of the proceeding

CATCHWORDS:

PROCEDURE – COSTS - whether costs should follow the event - assessing the event warranting an award of costs -whether proportion of costs should be awarded to the defendant up to the date of the Calderbank Offer or at all– making of a Calderbank offer by the defendant - whether the rejection of the offer by the plaintiff was so unreasonable or imprudent so as to warrant an award of indemnity costs

LEGISLATION:

Civil Proceedings Act 2011 (Qld) s 58
Uniform Civil procedure Rules 1999 (Qld) r 681, 702, 766

CASES:

Alborn & Ors v Stephens & Ors [2010] QCA 58
Aljade & MKIC v OCBC [2004] VSC 351
Australian Conservation Foundation & Ors v Forestry Commission of Tasmania & Ors (1988) 81 ALR 166
AVS Australian Venue Security Services Pty Ltd v Criminale (No 2) [2007] NSWCA 34
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Brymount Pty Ltd t/as Watson Toyota v Cummins & Anor (No 2) [2005] NSWCA 69
Built Qld Pty Ltd v Pro-Invest Australian Hospitality Opportunity (ST) Pty Ltd (No 3) [2022] QSC 62
Colgate-Palmolive Company v Cussons Pty Ltd [1993] 46 FCR 225
Commonwealth of Australia v Gretton [2008] NSWCA 117
Courtney v Chalfen [2021] QCA 25
Griffith v Australian Broadcasting (No 2) [2011] NSWCA 145
Hadgelias Holdings and Waight v Seirlis & Ors [2014] QCA 235
Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435
House v The King [1936] 55 CLR 499
Interchange Corporation Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 3) [2003] 1 Qd R 26
J & D Rigging Pty Ltd v Agripower Australia Ltd & Ors [2014] QCA 23
James & Ors v Surf Road Nominees Pty Ltd & Ors (No 2) [2005] NSWCA 296
Jones v Bradley (No 2) [2003] NSWCA 258 AT
Kosho Pty Ltd & Anor v Trilogy Funds Management Ltd, Trilogy Funds Management Ltd & Ors v Fujino (No 2) [2013] QSC 170
Lawes v Nominal Defendant [2007] QSC 103
Leichardt Municipal Council v Green [2004] NSWCA 341
Nerinda Pty Ltd v Redland City Council & Ors [2018] QCA 196
Oshlack v Richmond River Council [1998] HCA 11
Porter v Lachlan ShireCouncil (No 2) [2006] NSWCA 252
Richmond River Council v Oshlack & Ors (1996) 39 NSWLR 622
Ritter v Godfrey [1920] 2 KB 47
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Speets Investment Pty Ltd v Bencol Pty Ltd (no 2) [2021] QCA 39
State of Queensland v Hayes (No 2) [2013] QSC 80

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Details
Case
[2022] QDC 290
Decision Date

CaseChat Overview and Summary

The matter before the court was a dispute between Thallon Mole Group Pty Ltd and Morton, concerning issues of procedure and costs. The case was heard in the Supreme Court of Queensland. The dispute arose from a previous litigation in which the plaintiff, Thallon Mole Group Pty Ltd, had been successful. The defendant, Morton, had made a Calderbank Offer, which is an offer made by a party to the other party to settle the proceedings on certain terms. The plaintiff rejected the offer, and the defendant subsequently applied for an order that the plaintiff should pay a proportion of the defendant's costs up to the date of the Calderbank Offer, and also for indemnity costs.

The legal issues the court was required to decide were whether the costs should follow the event, whether the proportion of costs should be awarded to the defendant up to the date of the Calderbank Offer or at all, and whether the rejection of the offer by the plaintiff was so unreasonable or imprudent so as to warrant an award of indemnity costs. The court considered the relevant authorities and principles of law, including the general rule that costs follow the event, and the exceptions to that rule.

The court found that the rejection of the Calderbank Offer by the plaintiff was not so unreasonable or imprudent as to warrant an award of indemnity costs. The court also found that the proportion of costs should not be awarded to the defendant up to the date of the Calderbank Offer, as the offer was not a "substantial and realistic alternative" to litigation. The court concluded that each party should bear their own costs of the proceeding.

In summary, the court held that the rejection of a Calderbank Offer by a plaintiff does not necessarily warrant an award of indemnity costs, and that the proportion of costs should not be awarded to the defendant up to the date of the Calderbank Offer unless it was a substantial and realistic alternative to litigation. The court's decision highlights the importance of considering the principles of law and the relevant authorities when making decisions about costs in litigation.

Orders

Orders of the court

Each party bears their own costs of the proceeding

Background

Background to the litigation

Full text does not contain this section.

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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