Toohey v Golder (No 4)

[2022] QSC 202

SUPREME COURT OF QUEENSLAND

CITATION:

Toohey v Golder (No 4) [2022] QSC 202

PARTIES:

NICOLLE TOOHEY

(plaintiff)

v
ANDREW GOLDER

(first defendant)

AND

EMMA GOLDER

(second defendant)

AND

HIGH CHURCH PTY LTD ABN 37 604 346 170

(third defendant)

FILE NO/S:

BS 9524 of 2016

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

23 September 2022

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers. The plaintiff’s submissions on costs were received on 26 August 2022 and the defendants’ submissions on costs were received on 13 September 2022.

JUDGE:

Freeburn J

ORDER:

The defendants pay the plaintiff’s costs of the application for leave to appeal filed on 15 June 2022.

CATCHWORDS:

PROCEDURE – COSTS – OFFERS OF COMPROMISE, PAYMENT INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – where the applicants’/defendants’ application for leave to appeal against the costs order was refused - whether the applicants’/defendants’ failure to accept the Calderbank offer effects the exercise of discretion as to costs.

COUNSEL:

N H Ferrett QC for the plaintiff
J M Manner for the defendants

SOLICITORS:

Woods Prince Lawyers Pty Ltd for the plaintiff
SLF Lawyers for the defendants

REASONS

1. On 25 August 2022, I refused leave to appeal certain costs orders.[1]

   [1]Toohey v Golder (No 3) [2022] QSC 176.

2. Both parties accept that costs ought to follow the event.  However, the plaintiff/respondent seeks her costs of the application for leave on an indemnity basis.  Costs are sought on that basis because, it is alleged, the defendants imprudently refused an offer of compromise made by way of a ‘Calderbank’ offer on 27 June 2022.  That offer was that the application for leave to appeal and the appeal be dismissed and each party bear their own costs.

3. The offer explained in detail the reasons why the offer ought to be accepted.

4. For the following reasons, I do not think this is an appropriate case for indemnity costs.

5. First, indemnity costs orders should not be made lightly and only where warranted.[2]

   [2]Mio Art Pty Ltd v Macequest Pty Ltd (No 2) [2013] QSC 271 at [31]. See also Leichhardt Municipal Council v Green [2004] NSWCA 341 at [48]-[49].

6. Second, the offer was an offer to desist with the application for leave.  There is no suggestion that, at the time of the offer, any significant costs had been incurred by either party.  The offer was, in reality, a suggestion that the defendants give up their application for leave to appeal. Little was being offered by way of compromise.

7. Of course, that is not intended as a criticism of the plaintiffs.  There is little more they could sensibly have offered by way of a compromise.  The reality is that the nature of this type of application is different from a substantive dispute where there is room for each party to compromise and to make offers whereby each party meaningfully offers to take something less or different to what might be achieved after a full hearing on the merits.

8. Third, the costs issues and the arguments raised by the defendants could not be described as unreasonable or unarguable.  It is true that the defendants bore the burden of establishing that the discretion miscarried.  However, the three proposed grounds of appeal each involved some complexity.

9. The two offers of compromise, for example, were held by Bond J to be genuine offers of compromise.  The assessment of whether, in the circumstances, the plaintiff’s conduct in failing to accept those offers was a matter of some difficulty.

10. Similarly, the apportionment of costs issue would have been resolved differently with more regard to the ultimate result.[3]

    [3]See Toohey v Golder (No 3) [2022] QSC 176 at [56].

11. On the Magistrates Court scale issue, Bond J deviated from the standard order under UCPR 697(2) and did so because he adjudged it as unlikely that, had the proceedings been commenced in the Magistrates Court, the defendants would have limited their remedies to those available in that forum. That was plainly not an easy counterfactual to assess.

12. In short, the complexity of this particular exercise of the costs discretion makes it difficult to conclude that it was imprudent for the defendants to fail to accept the offer.

13. For those reasons, the order will be that the defendants pay the plaintiff’s costs – on the standard basis.