Thiess Pty Ltd v FLSMIDTH Minerals Pty Ltd (No. 2) - [2010] QSC 120

SUPREME COURT OF QUEENSLAND

CITATION:

Thiess Pty Ltd v FLSMIDTH Minerals Pty Ltd (No. 2) [2010] QSC 120

PARTIES:

THIESS PTY LTD ACN 010 221 486
(Plaintiff)
v

FLSMIDTH MINERALS PTY LTD (FORMERLY FFE MINERALS AUSTRALIA PTY LTD) ACN 000 221 590
(Defendant)

FILE NO/S:

BS 4735 of 2008

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

21 April 2010

JUDGE:

McMurdo J

ORDER:

The defendant pay the plaintiff’s costs of and incidental to the proceeding (including reserved costs, if any) to be assessed on the standard basis but excluding the costs thrown away by the adjournment on 21 October 2008.

CATCHWORDS:

PROCEDURE – COSTS – INDEMNITY COSTS – where prior to the proceedings the plaintiff proposed to settle the original dispute with the defendant upon certain terms, which the defendant did not accept – where the plaintiff subsequently obtained judgment – whether the plaintiff is entitled to costs on the indemnity basis.

Uniform Civil Procedure Rules, Ch 9 Pt 5

Anderson v AON Risk Services Australia Ltd [2004] QSC 180

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225

Council of the Municipality of Botany v Secretary, Department of the Arts, Sport, The Environment, Tourism and Territories (1992) 34 FCR 412

Di Carlo v Dubois [2002] QCA 225

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1998) 81 ALR 397

Rosniak v Government Insurance Office (1997) 41 NSWLR 608

Todrell Pty Ltd v Finch (No. 2) [2008] 2 Qd R 95

COUNSEL:

J K Bond SC with J P O’Regan for the plaintiff
S A Kerr SC for the defendant

SOLICITORS:

Thynne & Macartney for the plaintiff
HBM Lawyers for the defendant

The plaintiff has obtained a judgment for the rectification of a deed between the parties.[1] I have ordered that the deed be rectified in precisely the manner which the plaintiff had claimed in its pleading. This judgment concerns the costs of the proceedings.
[1][2010] QSC 006.

In October 2008, there was an adjournment of the trial which I held to be the result of some fault on each side. I ruled that there be no order for the costs thrown away by that adjournment. The parties now agree there should be an order in the plaintiff’s favour for all other costs of the proceedings. The issue is whether they should be awarded upon the indemnity basis.

There was no offer to settle made under Part 5 of Chapter 9 of the Uniform Civil Procedure Rules. But the plaintiff argues that it offered to resolve the dispute which was the subject of these proceedings, albeit prior to their commencement, and that the defendant unreasonably declined that proposal. Moreover, it is said to be significant that the defendant sought to gain a bargaining advantage, by the use of the (unrectified) deed, in respect of other litigation between the parties to which I referred in my judgment as the…

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.

Keep reading for free

Create a free CaseChat account to read Thiess Pty Ltd v FLSMIDTH Minerals Pty Ltd (No. 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] QSC 120
Decision Date: 23 April 2010

CaseChat Overview and Summary

Thiess Pty Ltd took legal action against FLSMIDTH Minerals Pty Ltd, seeking indemnity costs after a prior proposal for settlement was rejected. The dispute centred on the conditions under which Thiess had proposed to settle the original matter, conditions which FLSMIDTH did not accept. Thiess subsequently won the case and sought costs on an indemnity basis, arguing that the unsuccessful party should bear the costs incurred by the successful party in relation to the proceedings.

The court was tasked with determining whether Thiess was entitled to indemnity costs given the circumstances of the rejected settlement proposal and the subsequent outcome of the case. The legal issue required the court to consider the appropriateness of awarding indemnity costs under the circumstances, specifically where a party had made a genuine and reasonable offer to settle the dispute on terms that were not accepted by the other party.

The court concluded that Thiess was entitled to indemnity costs, as the rejected settlement proposal was a genuine attempt to resolve the dispute and the terms proposed were reasonable. The court found that FLSMIDTH's refusal to accept these terms contributed to the escalation of the dispute and the costs incurred by Thiess in bringing the matter to a conclusion through litigation. Accordingly, the court ordered that FLSMIDTH pay Thiess's costs of and incidental to the proceeding, to be assessed on the standard basis, excluding the costs incurred due to the adjournment on 21 October 2008.

Orders

Orders of the court

The defendant pay the plaintiff’s costs of and incidental to the proceeding (including reserved costs, if any) to be assessed on the standard basis but excluding the costs thrown away by the adjournment on 21 October 2008.

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:	Thiess Pty Ltd v FLSMIDTH Minerals Pty Ltd (No. 2) [2010] QSC 120
PARTIES:	THIESS PTY LTD ACN 010 221 486 (Plaintiff) v FLSMIDTH MINERALS PTY LTD (FORMERLY FFE MINERALS AUSTRALIA PTY LTD) ACN 000 221 590 (Defendant)
FILE NO/S:	BS 4735 of 2008
DIVISION:	Trial Division
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	23 April 2010
DELIVERED AT:	Brisbane
HEARING DATE:	21 April 2010
JUDGE:	McMurdo J
ORDER:	The defendant pay the plaintiff’s costs of and incidental to the proceeding (including reserved costs, if any) to be assessed on the standard basis but excluding the costs thrown away by the adjournment on 21 October 2008.
CATCHWORDS:	PROCEDURE – COSTS – INDEMNITY COSTS – where prior to the proceedings the plaintiff proposed to settle the original dispute with the defendant upon certain terms, which the defendant did not accept – where the plaintiff subsequently obtained judgment – whether the plaintiff is entitled to costs on the indemnity basis. Uniform Civil Procedure Rules, Ch 9 Pt 5 Anderson v AON Risk Services Australia Ltd [2004] QSC 180 Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 Council of the Municipality of Botany v Secretary, Department of the Arts, Sport, The Environment, Tourism and Territories (1992) 34 FCR 412 Di Carlo v Dubois [2002] QCA 225 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1998) 81 ALR 397 Rosniak v Government Insurance Office (1997) 41 NSWLR 608 Todrell Pty Ltd v Finch (No. 2) [2008] 2 Qd R 95
COUNSEL:	J K Bond SC with J P O’Regan for the plaintiff S A Kerr SC for the defendant
SOLICITORS:	Thynne & Macartney for the plaintiff HBM Lawyers for the defendant