SUPREME COURT OF QUEENSLAND
CITATION:
Toohey v Golder & Ors (No. 2) [2022] QSC 93
PARTIES:
NICOLLE TOOHEY
(plaintiff)
v
ANDREW GOLDER
(first defendant)
EMMA GOLDER
(second defendant)
HIGH CHURCH PTY LTD
ABN 37 604 346 170(third defendant)
FILE NO:
SC No 9524 of 2016
DIVISION:
Trial Division
PROCEEDING:
Claim
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
20 May 2022
DELIVERED AT:
Brisbane
HEARING DATES:
Decision on the papers: written submissions received from the defendants dated 12 November 2021; from the plaintiff dated 18 November 2021; and from the defendants in reply dated 26 November 2021
JUDGE:
Bond JA
ORDERS:
The orders of the Court are:
1. The amount which should be paid to the plaintiff by the first and second defendants for interest is $5,575.56.
2. The plaintiff’s costs of her claim against the third defendant are to form part of the plaintiff’s costs of her claim against the first and second defendants.
3. The first and second defendants should pay 40% of the plaintiff’s costs of her claim against them, to be assessed on the standard basis.
4. The first, second and third defendants should pay the plaintiff’s costs of the counterclaim, to be assessed on the standard basis.
5. The costs which the plaintiff may recover under orders 3 and 4 must be assessed as if the proceeding (including the counterclaim) had been started and continued in the District Court.
CATCHWORDS:
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 sought damages for breach of contract by way of termination by the defendants – where the plaintiff sought to recover an amount as a debt due and owing for unpaid commissions by the defendants – where the defendants advanced a counterclaim against the plaintiff – where the plaintiff failed on their claim for damages arising from the alleged breach of contract – where the plaintiff succeeded on their claim for unpaid commissions – where the defendants abandoned their counterclaim after the close of evidence in trial – where further submissions were required to deal with the interest award on the unpaid commissions and the issue of costs – whether the plaintiff’s failure to accept either of two Calderbank offers effects the exercise of discretion as to costs – whether r 697 of the Uniform Civil Procedure Rules impacts the costs order – whether it is appropriate to limit the plaintiff to recovering only a percentage proportion of the costs of the claim having regard to the extent of the issues on which they succeeded and failed
Competition and Consumer Act 2010 (Cth), Australian Consumer Law, s 236, s 237(1)
Uniform Civil Procedure Rules 1999 (Qld), s 681, s 697, s 766(1)Calderbank v Calderbank [1975] 3 All ER 333, considered
Hadgelias Holdings and Waight v Seirlis & Ors [2014] QCA 325, cited
Hazeldene’s Chicken Farm Pty Ltd v…
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- AGLC
- Toohey v Golder (No. 2) [2022] QSC 93
- Case
- [2022] QSC 93
- Decision Date
CaseChat Overview and Summary
The central legal issues addressed by the court were whether the plaintiff's refusal of two Calderbank offers affected the exercise of discretion regarding costs, how rule 697 influenced the costs order, and whether it was appropriate to limit the plaintiff's recovery to a percentage of the total costs due to the partial success of their claims. The court had to balance the plaintiff's partial success against their unreasonable refusal of offers that could have potentially resolved the matter more favourably.
In reaching its decision, the court considered the principles outlined in Calderbank v Calderbank, which emphasise the importance of offers of compromise in the resolution of disputes. The court noted that the plaintiff's refusal of the offers was unreasonable and that this factored into the exercise of discretion in awarding costs. Additionally, the court applied rule 697 of the Uniform Civil Procedure Rules, which mandates that the court assess costs as if the proceeding had been started and continued in the District Court. The court concluded that it was appropriate to limit the plaintiff's recovery of costs to 40% of the total costs due to their partial success and failure to accept reasonable offers. This limitation reflected the extent of the issues on which the plaintiff succeeded and failed.
The final orders of the court were that the defendants should pay interest of $5,575.56 to the plaintiff, combine the plaintiff's costs against the third defendant with the costs against the first and second defendants, and pay 40% of the plaintiff's costs against the first and second defendants. The defendants were also required to cover the plaintiff's costs of the counterclaim. The costs were to be assessed on the standard basis and treated as if the proceeding had been initiated in the District Court.
Orders
Orders of the court
The orders of the Court are:
1. The amount which should be paid to the plaintiff by the first and second defendants for interest is $5,575.56.
2. The plaintiff’s costs of her claim against the third defendant are to form part of the plaintiff’s costs of her claim against the first and second defendants.
3. The first and second defendants should pay 40% of the plaintiff’s costs of her claim against them, to be assessed on the standard basis.
4. The first, second and third defendants should pay the plaintiff’s costs of the counterclaim, to be assessed on the standard basis.
5. The costs which the plaintiff may recover under orders 3 and 4 must be assessed as if the proceeding (including the counterclaim) had been started and continued in the District Court.
Background
Background to the litigation
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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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