Timberwolf Planting Pty Ltd v Forrester - [2024] QSC 254

SUPREME COURT OF QUEENSLAND

CITATION:

Timberwolf Planting Pty Ltd v Forrester [2024] QSC 254

PARTIES:

TIMBERWOLF PLANTING PTY LTD

(respondent/plaintiff)

v
ANDREW FORRESTER
(applicant/first defendant)
ROBYN KELLY
(applicant/second defendant)
DIRTY PLANTING PTY LTD

(applicant/third defendant)

FILE NO/S:

BS 5714 of 2022

DIVISION:

Trial division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 October 2024

DELIVERED AT:

Brisbane

HEARING DATE:

6 June 2024

JUDGE:

Cooper J

ORDER:

1.   The plaintiff is to pay the defendants’ costs of the discontinued proceeding from and including 17 April 2024 up to and including 3 May 2024.

2.   The defendants’ costs of the discontinued proceeding up to and including 3 May 2024, including the costs referred to in paragraph 3 of the orders of Muir J dated 3 May 2024, are to be assessed on the standard basis if not agreed.

3.   The plaintiff is to pay the defendants’ costs the subject of paragraphs 1 and 2 of these orders and paragraph 3 of the orders of Muir J dated 3 May 2024 within 28 days of the amount of those costs being agreed or assessed.

4.   The defendants are to pay 90% of the plaintiff’s costs of and incidental to the hearing on 6 June 2024 to be assessed on the standard basis if not agreed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – PARTICULAR CASES – UNREASONABLE CONDUCT OR DELINQUENCY RELATING TO PROCEEDINGS – where the plaintiff commenced the proceeding in the District Court in 2019 – where the defendants complained that the plaintiff was dilatory in providing adequate disclosure and in particularising its loss – where the proceeding was subsequently transferred to the Supreme Court in 2022 – where a trial was listed to commence in June 2024 – where the plaintiff discontinued the proceeding in May 2024 – where the defendants argued that the plaintiff’s conduct had unduly prolonged the proceeding and caused them to incur costs which they should not have to bear – where the plaintiff argued the delay was also partly caused by the defendants’ inadequate disclosure which prevented the plaintiff from properly particularising its loss and the defendants’ own delay in providing an expert report – whether the plaintiff’s conduct of the proceeding was so unreasonable so as to warrant an order that it pay the defendants’ costs on the indemnity basis

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – UNREASONABLE REFUSAL OF OFFER – where the plaintiff made an offer to settle the proceedings and to pay the defendants’ costs on the standard basis in April 2024 – where the defendants rejected the plaintiff’s offer and instead made a counteroffer to settle which the plaintiff did not accept – where the plaintiff submitted that its offer was reasonable and had it been accepted, the defendants would not have incurred further costs after April 2024 – whether…

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.

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Details

Case: [2024] QSC 254
Decision Date: 25 October 2024

CaseChat Overview and Summary

In the case of Timberwolf Planting Pty Ltd v Forrester, the plaintiff commenced proceedings in the District Court in 2019, which were later transferred to the Supreme Court in 2022. The plaintiff discontinued the proceedings in May 2024, and the defendants argued that the plaintiff's conduct had unduly prolonged the proceeding and caused them to incur costs which they should not have to bear. The plaintiff, on the other hand, argued that the delay was partly caused by the defendants’ inadequate disclosure and their own delay in providing an expert report.

The legal issues before the court were whether the plaintiff's conduct of the proceeding was so unreasonable as to warrant an order that it pay the defendants’ costs on the indemnity basis, and whether the defendants acted unreasonably in not accepting the plaintiff’s offer of compromise such that no costs order should be made in favour of the defendants after the date of the offer. The court found that the plaintiff's conduct was not so unreasonable as to warrant an indemnity costs order, but that the defendants were entitled to recover costs from the plaintiff on the standard basis. The court also found that the defendants' refusal of the plaintiff's offer of compromise was unreasonable, and that no costs order should be made in favour of the defendants after the date of the offer.

In summary, the court ordered that the plaintiff pay the defendants' costs of the discontinued proceeding from 17 April 2024 up to and including 3 May 2024, and that the defendants' costs of the discontinued proceeding up to and including 3 May 2024, including the costs referred to in the orders of Muir J dated 3 May 2024, are to be assessed on the standard basis if not agreed. The court further ordered that the plaintiff pay the defendants' costs the subject of these orders and paragraph 3 of the orders of Muir J dated 3 May 2024 within 28 days of the amount of those costs being agreed or assessed, and that the defendants are to pay 90% of the plaintiff's costs of and incidental to the hearing on 6 June 2024 to be assessed on the standard basis if not agreed.

Orders

Orders of the court

1. The plaintiff is to pay the defendants’ costs of the discontinued proceeding from and including 17 April 2024 up to and including 3 May 2024.

2. The defendants’ costs of the discontinued proceeding up to and including 3 May 2024, including the costs referred to in paragraph 3 of the orders of Muir J dated 3 May 2024, are to be assessed on the standard basis if not agreed.

3. The plaintiff is to pay the defendants’ costs the subject of paragraphs 1 and 2 of these orders and paragraph 3 of the orders of Muir J dated 3 May 2024 within 28 days of the amount of those costs being agreed or assessed.

4. The defendants are to pay 90% of the plaintiff’s costs of and incidental to the hearing on 6 June 2024 to be assessed on the standard basis if not agreed.

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

Both parties have had some success on the issues I was required to determine. However, the most significant issue in dispute was whether the defendants’ costs should be assessed on the indemnity basis. The plaintiff succeeded on that issue. It should have an order for its costs of and incidental to the hearing on 6 June 2024, those costs being reduced by a small amount to reflect the defendants’ success on the other issues argued before me.Conclusion The orders will be as follows.1. The plaintiff is to pay the defendants’ costs of the discontinued proceeding from and including 17 April 2024 up to and including 3 May 2024.2. The defendants’ costs of the discontinued proceeding up to and including 3 May 2024, including the costs referred to in paragraph 3 of the orders of Muir J dated 3 May 2024, are to be assessed on the standard basis if not agreed.3. The plaintiff is to pay the defendants’ costs the subject of paragraphs 1 and 2 of these orders and paragraph 3 of the orders of Muir J dated 3 May 2024 within 28 days of the amount of those costs being agreed or assessed.4. The defendants are to pay 90% of the plaintiff’s costs of and incidental to the hearing on 6 June 2024 to be assessed on the standard basis if not agreed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Timberwolf Planting Pty Ltd v Forrester [2024] QSC 254
PARTIES:	TIMBERWOLF PLANTING PTY LTD (respondent/plaintiff) v ANDREW FORRESTER (applicant/first defendant) ROBYN KELLY (applicant/second defendant) DIRTY PLANTING PTY LTD (applicant/third defendant)
FILE NO/S:	BS 5714 of 2022
DIVISION:	Trial division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	25 October 2024
DELIVERED AT:	Brisbane
HEARING DATE:	6 June 2024
JUDGE:	Cooper J
ORDER:	1. The plaintiff is to pay the defendants’ costs of the discontinued proceeding from and including 17 April 2024 up to and including 3 May 2024. 2. The defendants’ costs of the discontinued proceeding up to and including 3 May 2024, including the costs referred to in paragraph 3 of the orders of Muir J dated 3 May 2024, are to be assessed on the standard basis if not agreed. 3. The plaintiff is to pay the defendants’ costs the subject of paragraphs 1 and 2 of these orders and paragraph 3 of the orders of Muir J dated 3 May 2024 within 28 days of the amount of those costs being agreed or assessed. 4. The defendants are to pay 90% of the plaintiff’s costs of and incidental to the hearing on 6 June 2024 to be assessed on the standard basis if not agreed.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – PARTICULAR CASES – UNREASONABLE CONDUCT OR DELINQUENCY RELATING TO PROCEEDINGS – where the plaintiff commenced the proceeding in the District Court in 2019 – where the defendants complained that the plaintiff was dilatory in providing adequate disclosure and in particularising its loss – where the proceeding was subsequently transferred to the Supreme Court in 2022 – where a trial was listed to commence in June 2024 – where the plaintiff discontinued the proceeding in May 2024 – where the defendants argued that the plaintiff’s conduct had unduly prolonged the proceeding and caused them to incur costs which they should not have to bear – where the plaintiff argued the delay was also partly caused by the defendants’ inadequate disclosure which prevented the plaintiff from properly particularising its loss and the defendants’ own delay in providing an expert report – whether the plaintiff’s conduct of the proceeding was so unreasonable so as to warrant an order that it pay the defendants’ costs on the indemnity basis PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – UNREASONABLE REFUSAL OF OFFER – where the plaintiff made an offer to settle the proceedings and to pay the defendants’ costs on the standard basis in April 2024 – where the defendants rejected the plaintiff’s offer and instead made a counteroffer to settle which the plaintiff did not accept – where the plaintiff submitted that its offer was reasonable and had it been accepted, the defendants would not have incurred further costs after April 2024 – whether…