Wilson v Angseesing - [2018] QSC 61

SUPREME COURT OF QUEENSLAND

CITATION:

Wilson v Angseesing & Anor [2018] QSC 61

PARTIES:

ZACHARY GEORGE WILSON, a person under a legal incapacity, by his Litigation Guardian, RACHAEL REBECCA WILSON

(plaintiff)

v
EMILY-JANE ANGSEESING
(first defendant)
RACQ INSURANCE LIMITED
ABN 50 009 704 152)

(second defendant)

FILE NO/S:

BS No 7634 of 2014

DIVISION:

Trial Division

PROCEEDING:

Civil Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers 19 March 2018

JUDGE:

Douglas J

ORDER:

1. The Certificate of Assessment dated 8 November 2017 filed on 16 November 2017 be varied as follows:

(a)   By increasing the Certificate of Assessment by $3,670.85 in light of the review allowing the following items that were disallowed: 170-171, 337-338, 355-356, 417-418, 709-710, 749-750, 775-776, 858-859, 1051-1052, 1205- 1206, 1249-1250, 1289-1290, 1331-1332, 1682-1683, 1768-1769, 1815- 1816, 2392-2393, 2453-2454, 2577-2578, 2811-2812 and 2940-2941.

(b)   By increasing the Certificate of Assessment by $917.70 in light of care and consideration allowed on subparagraph 1(a) at 25% for item number 3465.

(c)    By increasing paragraph 3(b) disbursements by $20,460.00 in light of the review allowing the following items: 1362, 2809, 2947, 2968, 3162, 3344 and 3357.

(d)   By increasing the disbursements in 3(b) by $8,653.00 in the disallowance of paragraph 5 of the Certificate.

(e)   By increasing the disbursements paid by $9,020.00 being the Costs Assessor's fees in paragraph 4 paid by the Plaintiff and now payable by the Second Defendant.

2.      Otherwise the Application for review be dismissed.

3.      The Second Defendant pay:

(a)   the Plaintiff’s costs of the assessment on a standard basis from 19 June 2017;

(b)   Two-thirds of the Plaintiff's costs of the application for review on a standard basis.

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 main action was settled – where second defendant agreed to pay plaintiff’s costs –where plaintiff offered for second defendant to pay $235,000 – where second defendant rejected offer – where plaintiff’s costs assessed by cost assessor as $211,230.10 – where plaintiff sought review of costs assessment – where plaintiff’s costs after review were $245,278.65 – whether plaintiff entitled to costs on indemnity basis as a result of review

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where plaintiff sought review of costs assessment – where plaintiff’s application for review successful – to what extent second defendant should pay plaintiff’s costs of review

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INTEREST ON COSTS – where plaintiff sought review of costs assessment – where plaintiff’s application for review was successful – whether plaintiff was entitled to interest on increase in costs assessment

Civil Proceedings Act 2011, s 58, s 59(4)(d)
Legal Profession Act 2007, s 342(2)(b)

COUNSEL:

M P…

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.

Continue reading Wilson v Angseesing

Details

AGLC: Wilson v Angseesing [2018] QSC 61
Case: [2018] QSC 61
Decision Date: 26 March 2018

CaseChat Overview and Summary

In the matter of Wilson v Angseesing, the primary issue before the court was the determination of costs following a successful review of an initial costs assessment. The plaintiff, Wilson, had previously settled the main action with the second defendant, Angseesing, who had agreed to pay the plaintiff’s costs. After the costs were initially assessed, Wilson offered to compromise by reducing the amount owed to $235,000. Angseesing rejected this offer, leading to a subsequent review of the costs assessment. The reviewed costs were found to be $245,278.65, which was higher than the initial assessment. The court had to decide whether Wilson was entitled to costs on an indemnity basis as a result of the review and whether Angseesing should be liable for the costs incurred during the review process.

The court examined the principle that costs generally follow the event and the exercise of discretion in such matters. It noted that while the initial costs assessment was lower, the subsequent review resulted in a higher amount due to the disallowance of certain items. The court found that Angseesing’s refusal to accept Wilson’s compromise offer was unreasonable, which justified the higher costs. The court further determined that Angseesing should bear the costs of the review on a standard basis and two-thirds of the costs of the application for review, also on a standard basis. This decision was based on the principle that the refusal of a reasonable compromise offer could result in the unsuccessful party bearing the costs of the review.

The court's reasoning led to several specific orders. Firstly, the initial Certificate of Assessment was varied to reflect the additional costs allowed by the review. Secondly, the application for review was largely dismissed, except for the items specified in the order. Finally, Angseesing was ordered to pay the plaintiff's costs of the assessment on a standard basis from a specified date and two-thirds of the costs of the application for review, also on a standard basis. The court's decision emphasised the importance of considering the reasonableness of compromise offers in the context of costs recovery in civil proceedings.

Orders

Orders of the court

1. The Certificate of Assessment dated 8 November 2017 filed on 16 November 2017 be varied as follows:

(a) By increasing the Certificate of Assessment by $3,670.85 in light of the review allowing the following items that were disallowed: 170-171, 337-338, 355-356, 417-418, 709-710, 749-750, 775-776, 858-859, 1051-1052, 1205- 1206, 1249-1250, 1289-1290, 1331-1332, 1682-1683, 1768-1769, 1815- 1816, 2392-2393, 2453-2454, 2577-2578, 2811-2812 and 2940-2941.

(b) By increasing the Certificate of Assessment by $917.70 in light of care and consideration allowed on subparagraph 1(a) at 25% for item number 3465.

(c) By increasing paragraph 3(b) disbursements by $20,460.00 in light of the review allowing the following items: 1362, 2809, 2947, 2968, 3162, 3344 and 3357.

(d) By increasing the disbursements in 3(b) by $8,653.00 in the disallowance of paragraph 5 of the Certificate.

(e) By increasing the disbursements paid by $9,020.00 being the Costs Assessor's fees in paragraph 4 paid by the Plaintiff and now payable by the Second Defendant.

2. Otherwise the Application for review be dismissed.

3. The Second Defendant pay:

(a) the Plaintiff’s costs of the assessment on a standard basis from 19 June 2017;

(b) Two-thirds of the Plaintiff's costs of the application for review on a standard basis.

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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CITATION:	Wilson v Angseesing & Anor [2018] QSC 61
PARTIES:	ZACHARY GEORGE WILSON, a person under a legal incapacity, by his Litigation Guardian, RACHAEL REBECCA WILSON (plaintiff) v EMILY-JANE ANGSEESING (first defendant) RACQ INSURANCE LIMITED ABN 50 009 704 152) (second defendant)
FILE NO/S:	BS No 7634 of 2014
DIVISION:	Trial Division
PROCEEDING:	Civil Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	26 March 2018
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers 19 March 2018
JUDGE:	Douglas J
ORDER:	1. The Certificate of Assessment dated 8 November 2017 filed on 16 November 2017 be varied as follows: (a) By increasing the Certificate of Assessment by $3,670.85 in light of the review allowing the following items that were disallowed: 170-171, 337-338, 355-356, 417-418, 709-710, 749-750, 775-776, 858-859, 1051-1052, 1205- 1206, 1249-1250, 1289-1290, 1331-1332, 1682-1683, 1768-1769, 1815- 1816, 2392-2393, 2453-2454, 2577-2578, 2811-2812 and 2940-2941. (b) By increasing the Certificate of Assessment by $917.70 in light of care and consideration allowed on subparagraph 1(a) at 25% for item number 3465. (c) By increasing paragraph 3(b) disbursements by $20,460.00 in light of the review allowing the following items: 1362, 2809, 2947, 2968, 3162, 3344 and 3357. (d) By increasing the disbursements in 3(b) by $8,653.00 in the disallowance of paragraph 5 of the Certificate. (e) By increasing the disbursements paid by $9,020.00 being the Costs Assessor's fees in paragraph 4 paid by the Plaintiff and now payable by the Second Defendant. 2. Otherwise the Application for review be dismissed. 3. The Second Defendant pay: (a) the Plaintiff’s costs of the assessment on a standard basis from 19 June 2017; (b) Two-thirds of the Plaintiff's costs of the application for review on a standard basis.
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 main action was settled – where second defendant agreed to pay plaintiff’s costs –where plaintiff offered for second defendant to pay $235,000 – where second defendant rejected offer – where plaintiff’s costs assessed by cost assessor as $211,230.10 – where plaintiff sought review of costs assessment – where plaintiff’s costs after review were $245,278.65 – whether plaintiff entitled to costs on indemnity basis as a result of review PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where plaintiff sought review of costs assessment – where plaintiff’s application for review successful – to what extent second defendant should pay plaintiff’s costs of review PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INTEREST ON COSTS – where plaintiff sought review of costs assessment – where plaintiff’s application for review was successful – whether plaintiff was entitled to interest on increase in costs assessment Civil Proceedings Act 2011, s 58, s 59(4)(d) Legal Profession Act 2007, s 342(2)(b)
COUNSEL:	M P…