Williams v. Rex & Anor (No. 2)

[2007] QDC 309

DISTRICT COURT OF QUEENSLAND

CITATION:

Williams v Rex and Anor (No. 2) [2007] QDC 309

PARTIES:

Delnita Elizabeth Williams
 (Plaintiff)
v
John William Rex
(First Defendant)

And

Tunrex Pty Ltd Trading as LJ Hooker Broadbeach
(Second Defendant)

FILE NO:

254 of 2004

PROCEEDING:

Application for indemnity costs

DELIVERED ON:

16 November 2007

DELIVERED AT:

Southport

HEARING DATE:

23 October 2007 followed by written submissions

JUDGE:

C.F. Wall Q.C.

ORDER:

Application refused

CATCHWORDS:

COSTS – costs in the District Court – successful defendants – whether entitled to indemnity costs – relevant principles.  

Cases referred to:
Smits v Tabone [2007] QCA 337, 12 October 2007, paragraphs [43] to [48] and [53], FAA
Colgate Palmolive Company v Cussons Proprietory Limited (1993) 46 FCR, 225, CON

COUNSEL

Mr  B. Kidston for the Defendants
Ms J.  McClymont for the Plaintiff

SOLICITORS:

Plaintiff – McDonald Brown
Defendants – Carter Newell (Brisbane)

HIS HONOUR:  The defendants have asked for costs on an indemnity basis.  They are entitled to a cost order in their favour as the plaintiff lost and they succeeded in the action.  See my judgment delivered on the 23rd of October 2007.

The normal order for costs is on the standard basis, and "some special reason is required for any departure from that."  An order for indemnity costs will be considered if there is an "imprudent refusal of an offer to compromise", "some evidence of unreasonable conduct, albeit that it need not rise as high as vexation", where "the proceedings had no reasonable prospect of success" or "little prospect of success", where a party "persists in a hopeless case", where a party "advanced a case which was wholly without any arguable merit", or where a party advanced "plainly untenable claims."  See Smits v Tabone [2007] QCA337, 12 October 2007, paragraphs [43] to [48] and [53].

Calderbank letters are relied on by the defendants for their submission that the plaintiff should not have proceeded to trial and acted unreasonably in refusing to accept one of the six offers of settlement made to her between the 1st of October 2004 and the 14th of August 2007.  The last offer was a payment by the defendants to the plaintiff of $5,000 inclusive of costs. 

The defendants submit that the failure to accept at least this offer should be categorised as unreasonable by reference to the result at trial and should, in effect, attract the "penalty rule as to costs."  In simple terms, that may, with the benefit of hindsight, appear warranted but in my view there are other factors that also need to be considered in deciding whether the plaintiff has acted unreasonably in refusing such an offer.  These include the amount she was claiming, the strength of her case looked at both subjectively and objectively at the time the offer or offers were made and considered, and the basis upon which the plaintiff failed at trial.

Her claim was for some $53,000 plus interest.  She failed because I found her witness, Mrs Elizabeth Williams, to…