Tisdall v Omeros

Case [2019] QSC 236

SUPREME COURT OF QUEENSLAND

CITATION:

Tisdall v Omeros & Anor [2019] QSC 236

PARTIES:

DAVID CHRISTOPHER TISDALL

(plaintiff)

v
MICHAEL NICTARIOS OMEROS
(first defendant)
BRENT EVANS PADDON

(second defendant)

FILE NO:

BS 2199 of 2018

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:


Supreme Court at Brisbane

DELIVERED ON:

23 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Bradley J

ORDER:

Order made on 20 September 2019:

The plaintiff pay the defendants’ costs of the proceeding on the standard basis up to and including 5 March 2019 and on the indemnity basis from and including 6 March 2019.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – PARTICULAR CASES – ABUSE OF PROCESS – where, after trial, the plaintiff’s claim against the defendants was dismissed and judgment was entered for the defendants – where the plaintiff was found to have given false and dishonest evidence at trial – where the defendants seek an award of indemnity costs for the whole of the proceeding on the basis that the plaintiff’s dishonesty constituted an abuse of process – whether indemnity costs may be awarded as a sanction for giving false evidence

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – PARTICULAR CASES – HOPELESS CASES – where the defendants contend that an award of indemnity costs is justified on the basis that the plaintiff’s claims were hopeless and bound to fail – where the plaintiff’s claims survived until trial and were not subject to any applications for strike out or summary judgment – whether the plaintiff’s claims were hopeless and bound to fail in the relevant sense

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – PARTICULAR CASES – UNREASONABLE CONDUCT OR DELINQUENCY RELATING TO PROCEEDINGS – where the defendants contend that the plaintiff’s claim was speculative and brought with an improper motive – where the defendants tendered at trial a written admission by the plaintiff that he had commenced the proceeding in a speculative frame of mind – whether the commencement and continuation of the claim, of itself, justifies an award of indemnity costs

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 rejected a Calderbank offer from the defendants – where the offer was made after the pleadings had been finalised, disclosure had been completed and a trial date had been set – whether the plaintiff’s rejection of the offer was unreasonable – whether costs ought to be awarded on the indemnity basis from the date of the offer

Civil Proceedings Act 2011 (Qld), s 15
Uniform Civil Procedure Rules 1999 (Qld), r 681, r 702, r 703

Beardmore v Franklins Management Services Pty Ltd [2003] 1 Qd R 1; [2002] QCA 60, applied
Calderbank v Calderbank [1975] 3 WLR 586

Continue reading Tisdall v Omeros

Sign in free to access the full text

Details
AGLC
Tisdall v Omeros [2019] QSC 236
Case
[2019] QSC 236
Decision Date

CaseChat Overview and Summary

In the case of Tisdall v Omeros, the plaintiff sought damages for alleged breaches of contract by the defendants. After a trial, the plaintiff's claims were dismissed, and judgment was entered in favour of the defendants. The defendants applied for indemnity costs on various grounds, including the plaintiff's giving of false and dishonest evidence, the hopelessness of the plaintiff's claims, the speculative nature of the proceeding, and the plaintiff's unreasonable refusal of a Calderbank offer.

The court considered whether indemnity costs could be awarded as a sanction for the plaintiff's dishonesty, whether the plaintiff's claims were hopeless and bound to fail, whether the speculative nature of the proceeding justified an award of indemnity costs, and whether the plaintiff's refusal of the Calderbank offer was unreasonable. The court found that the plaintiff had given false and dishonest evidence, which constituted an abuse of process. The court also found that the plaintiff's claims were not hopeless and bound to fail, and that the speculative nature of the proceeding did not justify an award of indemnity costs. However, the court found that the plaintiff's rejection of the Calderbank offer was unreasonable, and that costs ought to be awarded on the indemnity basis from the date of the offer.

The court ordered that the plaintiff pay the defendants' costs of the proceeding on the standard basis up to and including 5 March 2019, and on the indemnity basis from and including 6 March 2019. The court held that the plaintiff's dishonesty and unreasonable refusal of the Calderbank offer justified an award of indemnity costs. The court did not consider it necessary to award indemnity costs for the whole of the proceeding, as the plaintiff's claims were not hopeless and bound to fail, and the speculative nature of the proceeding did not justify such an award.

Orders

Orders of the court

Order made on 20 September 2019:

The plaintiff pay the defendants’ costs of the proceeding on the standard basis up to and including 5 March 2019 and on the indemnity basis from and including 6 March 2019.

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.