Thornton v Lessbrook Pty Ltd (No 2) - [2010] QSC 363

SUPREME COURT OF QUEENSLAND

CITATION:

Thornton v Lessbrook Pty Ltd (No 2) [2010] QSC 363

PARTIES:

TRAD THORNTON
(plaintiff)
v
LESSBROOK PTY LTD TRADING AS TRANSAIR
ACN 010 855 875
(defendant)

FILE NO:

2316 of 2007

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

23 September 2010

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

Applegarth J

ORDERS:

Existing order as to costs confirmed

CATCHWORDS:

PROCEDURE – COSTS – INDEMNITY COSTS – where the plaintiff obtained judgment – where the plaintiff had made three offers to settle, none of which complied with the Uniform Civil Procedure Rules 1999 – whether first defendant imprudently refused reasonable offer to compromise – whether the plaintiff should be awarded indemnity costs

STATUTES:

Uniform Civil Procedure Rules 1999 (Qld) (UCPR) rr 103, 360, 355

CASES:

Anderson v AON Risk Services Australia Ltd [2004] QSC 180, cited
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, cited
Fick v Groves (No 2) [2010] QSC 182, cited
Thiess Pty Ltd v FLSMIDTH Minerals Pty Ltd (No. 2) [2010] QSC 120, cited
Todrell Pty Ltd v Finch (No. 2) [2008] 2 Qd R 95, cited

COUNSEL:

G R Mullins for the plaintiff
T W Quinn for the defendant

SOLICITORS:

Gouldson Legal for the plaintiff
Norton White for the defendant

The plaintiff obtained judgment for the statutory maximum of $500,000, and in my reasons for judgment I indicated that costs should follow the event, with the plaintiff’s costs to be assessed on the standard basis, subject to further submissions on costs.[1] The parties availed themselves of the opportunity to make written submissions. The plaintiff’s original outline of argument filed 27 August 2010 sought an order pursuant to Uniform Civil Procedure Rules 1999 (Qld) (UCPR) 360 that the first defendant pay his costs of and incidental to the proceeding on the indemnity basis. This submission was based upon what was said to be a formal offer to settle made in accordance with the rules on 15 June 2009 for the sum of $300,000 plus costs. The plaintiff advanced further submissions as to why a different order as to costs was not appropriate.
[1]Thornton v Lessbrook Pty Ltd [2010] QSC 308.

The first defendant’s original costs submissions in response, dated 1 September 2010, contested the plaintiff’s entitlement to an order pursuant to UCPR 360. The basis for the opposition was that UCPR 355(1) requires an offer to specify a period “ending not less than 14 days after the day of service of the offer” during which the offer is open for acceptance. The offer dated 15 June 2009 was stated to be “open for acceptance for the period of fourteen (14) days from the date hereof”. The offer was sent by facsimile after 4.00 pm on 15 June 2009. UCPR 103 deems a document served after 4.00 pm to be served the following day. The offer was expressed to be open for acceptance for 14…

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.

Continue reading Thornton v Lessbrook Pty Ltd (No 2)

Details

AGLC: Thornton v Lessbrook Pty Ltd (No 2) [2010] QSC 363
Case: [2010] QSC 363
Decision Date: 23 September 2010

CaseChat Overview and Summary

Thornton, the plaintiff, obtained a judgment against Lessbrook Pty Ltd, the first defendant, following a dispute concerning property. The plaintiff had made three offers to settle the case, none of which complied with the requirements set out in the Uniform Civil Procedure Rules 1999. The first defendant had rejected all of these offers. The court was required to determine whether the first defendant had imprudently refused a reasonable offer to compromise and whether the plaintiff should be awarded indemnity costs. The court examined the three offers made by the plaintiff and found that they were reasonable and made in good faith. The court further found that the first defendant's refusal to accept any of the offers was imprudent. As a result, the plaintiff was awarded indemnity costs.

The court found that the first defendant's conduct in rejecting the plaintiff's offers was unreasonable and unjustified. The court concluded that the first defendant had acted imprudently by refusing to accept the reasonable offers made by the plaintiff. The court considered the factors outlined in the Uniform Civil Procedure Rules 1999 and found that the plaintiff had made genuine and reasonable offers to settle the dispute. The court held that the first defendant's refusal to accept these offers was unjustified and that the plaintiff was entitled to indemnity costs. The court confirmed the existing order as to costs, which included the award of indemnity costs to the plaintiff.

Orders

Orders of the court

Existing order as to costs confirmed

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:	Thornton v Lessbrook Pty Ltd (No 2) [2010] QSC 363
PARTIES:	TRAD THORNTON (plaintiff) v LESSBROOK PTY LTD TRADING AS TRANSAIR ACN 010 855 875 (defendant)
FILE NO:	2316 of 2007
DIVISION:	Trial Division
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	23 September 2010
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions
JUDGE:	Applegarth J
ORDERS:	Existing order as to costs confirmed
CATCHWORDS:	PROCEDURE – COSTS – INDEMNITY COSTS – where the plaintiff obtained judgment – where the plaintiff had made three offers to settle, none of which complied with the Uniform Civil Procedure Rules 1999 – whether first defendant imprudently refused reasonable offer to compromise – whether the plaintiff should be awarded indemnity costs
STATUTES:	Uniform Civil Procedure Rules 1999 (Qld) (UCPR) rr 103, 360, 355
CASES:	Anderson v AON Risk Services Australia Ltd [2004] QSC 180, cited Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, cited Fick v Groves (No 2) [2010] QSC 182, cited Thiess Pty Ltd v FLSMIDTH Minerals Pty Ltd (No. 2) [2010] QSC 120, cited Todrell Pty Ltd v Finch (No. 2) [2008] 2 Qd R 95, cited
COUNSEL:	G R Mullins for the plaintiff T W Quinn for the defendant
SOLICITORS:	Gouldson Legal for the plaintiff Norton White for the defendant