Westpac Banking Corporation v Jamieson - [2015] QCA 84

SUPREME COURT OF QUEENSLAND

CITATION:

Westpac Banking Corporation v Jamieson & Ors [2015] QCA 84

PARTIES:

WESTPAC BANKING CORPORATION
ABN 33 007 457 171

(appellant/cross-respondent)v
MARK BRYAN JAMIESON

(first respondent/first cross-appellant)LORRELL BERNADETTE JAMIESON

(second respondent/second cross-appellant)JAMIESON INVESTMENTS QLD PTY LTD
ACN 103 273 070 as trustee for The M & L SUPER FUND
(third cross-appellant)

FILE NO/S:

Appeal No 3234 of 2014
SC No 3536 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURTS:

Supreme Court at Brisbane – [2015] QCA 50; [2014] QSC 32

DELIVERED ON:

15 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Margaret McMurdo P and Morrison JA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appellant pay the respondents’ costs of and incidental to the appeal, including the costs of and incidental to the notice of contention, to be assessed on the standard basis.

2.   The cross-appellants pay the cross-respondent’s costs of and incidental to the cross-appeal, to be assessed on the standard basis.

3.   The first cross-appellant pay the cross-respondent’s costs of and incidental to the application filed 10 September 2014, to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – WHERE MONEY PAID INTO COURT OR OFFER OF COMPROMISE MADE – OFFER OF COMPROMISE MADE – where the bank unsuccessfully appealed from judgment made against it – where respondents rely upon bank’s rejection of a Calderbank offer to found an application for indemnity costs – where the offer made was not a substantial compromise on the judgment sum and post-judgment interest – whether bank’s rejection of offer unreasonable – whether there are special or unusual circumstances that justify an award of indemnity costs

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – DEPARTING FROM THE GENERAL RULE – OTHER CASES – SUBSTANTIAL SUCCESS/FAILURE IN PORTION OF A CASE – where the bank appealed and the respondents cross-appealed and also filed a notice of contention – where the appeal was dismissed such that issues raised by the notice of contention did not need to be determined – whether the costs occasioned by the notice of contention should be borne by the bank or the respondents or whether there should be no order as to costs

Uniform Civil Procedure Rules 1999 (Qld), ch 9 pt 5

Australian Conservation Foundation v Forestry Commission of Tasmania (1988) 81 ALR 166; [1988] FCA 144, cited
Australian Securities Commission v Aust-Home Investments Ltd & Ors (1993) 44 FCR 194; [1993] FCA 585, cited
Calderbank v Calderbank [1975] 3 WLR 586; [1976] Fam 93, cited
Grice v State of Queensland[2005] QCA 298, cited
Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298, cited
Mizikovsky v…

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: [2015] QCA 84
Decision Date: 15 May 2015

CaseChat Overview and Summary

In the case of Westpac Banking Corporation v Jamieson, the primary dispute was over costs incurred during litigation. The case was heard in the court of appeal, which considered the costs associated with the bank’s unsuccessful appeal against a judgment in favor of the respondents. The respondents sought indemnity costs, arguing that the bank's rejection of a Calderbank offer constituted an unreasonable decision that warranted such an award.

The court had to determine whether the bank’s rejection of the offer was unreasonable and whether any special or unusual circumstances existed to justify an award of indemnity costs. Additionally, the court addressed whether the costs associated with the notice of contention filed by the respondents should be borne by the bank or the respondents, especially given that the appeal was dismissed, and the issues raised by the notice of contention were not determined.

In its reasoning, the court found that the bank’s rejection of the offer was not unreasonable as the offer did not represent a substantial compromise on the judgment sum and post-judgment interest. Consequently, the court held that there were no special or unusual circumstances justifying an award of indemnity costs. Regarding the notice of contention, the court ruled that the costs should be borne by the bank, as the appeal was dismissed, and the issues raised by the notice of contention were not pursued further. The cross-appeal and the application filed on 10 September 2014 also resulted in orders for costs to be paid by the respective parties.

The court ordered that the appellant pay the respondents’ costs of and incidental to the appeal, including those of the notice of contention, and the cross-appellants pay the cross-respondent’s costs of and incidental to the cross-appeal. Furthermore, the first cross-appellant was ordered to pay the cross-respondent’s costs of and incidental to the application filed on 10 September 2014. All costs were to be assessed on the standard basis.

Orders

Orders of the court

1. The appellant pay the respondents’ costs of and incidental to the appeal, including the costs of and incidental to the notice of contention, to be assessed on the standard basis.

2. The cross-appellants pay the cross-respondent’s costs of and incidental to the cross-appeal, to be assessed on the standard basis.

3. The first cross-appellant pay the cross-respondent’s costs of and incidental to the application filed 10 September 2014, to be assessed on the standard basis.

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:	Westpac Banking Corporation v Jamieson & Ors [2015] QCA 84
PARTIES:	WESTPAC BANKING CORPORATION ABN 33 007 457 171 (appellant/cross-respondent)v MARK BRYAN JAMIESON (first respondent/first cross-appellant)LORRELL BERNADETTE JAMIESON (second respondent/second cross-appellant)JAMIESON INVESTMENTS QLD PTY LTD ACN 103 273 070 as trustee for The M & L SUPER FUND (third cross-appellant)
FILE NO/S:	Appeal No 3234 of 2014 SC No 3536 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Orders
ORIGINATING COURTS:	Supreme Court at Brisbane – [2015] QCA 50; [2014] QSC 32
DELIVERED ON:	15 May 2015
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Margaret McMurdo P and Morrison JA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appellant pay the respondents’ costs of and incidental to the appeal, including the costs of and incidental to the notice of contention, to be assessed on the standard basis. 2. The cross-appellants pay the cross-respondent’s costs of and incidental to the cross-appeal, to be assessed on the standard basis. 3. The first cross-appellant pay the cross-respondent’s costs of and incidental to the application filed 10 September 2014, to be assessed on the standard basis.
CATCHWORDS:	PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – WHERE MONEY PAID INTO COURT OR OFFER OF COMPROMISE MADE – OFFER OF COMPROMISE MADE – where the bank unsuccessfully appealed from judgment made against it – where respondents rely upon bank’s rejection of a Calderbank offer to found an application for indemnity costs – where the offer made was not a substantial compromise on the judgment sum and post-judgment interest – whether bank’s rejection of offer unreasonable – whether there are special or unusual circumstances that justify an award of indemnity costs PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – DEPARTING FROM THE GENERAL RULE – OTHER CASES – SUBSTANTIAL SUCCESS/FAILURE IN PORTION OF A CASE – where the bank appealed and the respondents cross-appealed and also filed a notice of contention – where the appeal was dismissed such that issues raised by the notice of contention did not need to be determined – whether the costs occasioned by the notice of contention should be borne by the bank or the respondents or whether there should be no order as to costs Uniform Civil Procedure Rules 1999 (Qld), ch 9 pt 5 Australian Conservation Foundation v Forestry Commission of Tasmania (1988) 81 ALR 166; [1988] FCA 144, cited Australian Securities Commission v Aust-Home Investments Ltd & Ors (1993) 44 FCR 194; [1993] FCA 585, cited Calderbank v Calderbank [1975] 3 WLR 586; [1976] Fam 93, cited Grice v State of Queensland[2005] QCA 298, cited Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298, cited Mizikovsky v…