Wright v KB Nut Holdings Pty Ltd - [2013] QCA 153

SUPREME COURT OF QUEENSLAND

CITATION:

Wright v KB Nut Holdings Pty Ltd [2013] QCA 153

PARTIES:

ROBYN JOY WRIGHT
(appellant)
v
KB NUT HOLDINGS PTY LTD as trustee for the KERRIE-ANN STEVENSON FAMILY TRUST (ACN 127 054 872) trading as ‘BONAPARTES SERVICED APARTMENTS’
(respondent)

FILE NO/S:

Appeal No 7435 of 2012
SC No 3367 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

18 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Muir JA and Margaret Wilson and Douglas JJ
Judgment of the Court

ORDERS:

1.    The respondent pay the appellant’s costs of and incidental to the proceedings at first instance, other than the costs referred to in order 2 hereof, assessed on the indemnity basis.

2.    The appellant pay the respondent’s costs reserved by Robin QC DCJ on 14 March 2012 assessed on the standard basis.

3.    The respondent pay the appellant’s costs of and incidental to the appeal assessed on the standard basis except for the costs of and incidental to the submissions to this Court on costs.

4.    The respondent pay one-half of the appellant’s costs of and incidental to such submissions on costs assessed on the standard basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the Court allowed the appellant’s appeal and ordered that the respondent pay the appellant $494,759.38 together with interest thereon – where the parties were directed to file and exchange written submissions on costs – where the appellant seeks costs on an indemnity basis in respect of the proceedings at first instance and on appeal – where the appellant relies on a mandatory final offer under s 39 of the Personal Injuries Proceedings Act 2002 (Qld) and offers made pursuant to Chapter 9 Part 5 of the UCPR – where the respondent contends that it did not act unreasonably in not accepting the offers due to evidentiary issues regarding the extent of the appellant’s psychiatric/psychological impairment – where the respondent had the benefit of a judgment in its favour and submits that it acted reasonably in attempting to uphold the judgment on appeal – whether costs should be assessed on the indemnity basis

Personal Injuries Proceedings Act 2002 (Qld), s 39, s 40(8)
Uniform Civil Procedure Rules 1999 (Qld), r 360

Di Carlo v Dubois & Ors[2002] QCA 225, cited
Johnston & Anor v Herrod & Ors[2012] QCA 361, cited
Lawes v Nominal Defendant [2007] QSC 103, cited
Wright v KB Nut Holdings Pty Ltd [2013] QCA 66, related
Wright v K B Nut Holdings P/L (as Trustee for the Kerrie-Ann Stevenson Family Trust) t/as Bonapartes Serviced Apartments” (No 3) [2012] QDC 216, related
Yara Nipro P/L v Interfert Australia P/L[2010] QCA 164, cited

COUNSEL:

No appearance by the appellant, the appellant’s submissions were heard on the papers
No appearance by the respondent,…

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 Wright v KB Nut Holdings Pty Ltd

Details

AGLC: Wright v KB Nut Holdings Pty Ltd [2013] QCA 153
Case: [2013] QCA 153
Decision Date: 18 June 2013

CaseChat Overview and Summary

The appeal was brought by the appellant, Wright, against the respondent, KB Nut Holdings Pty Ltd, concerning a matter that was initially decided in the respondent's favour. The original dispute related to personal injuries that the appellant claimed were caused by the respondent's negligence. The Queensland Court of Appeal was tasked with determining the appeal, particularly focusing on the costs associated with both the original proceedings and the subsequent appeal.

The primary legal issue before the court was whether the costs incurred by the appellant in both the original proceedings and the appeal should be assessed on an indemnity basis. The appellant argued that the respondent had acted unreasonably in not accepting the mandatory final offer under section 39 of the Personal Injuries Proceedings Act 2002 (Qld) and offers made pursuant to Chapter 9 Part 5 of the Uniform Civil Procedure Rules 1999 (Qld). In contrast, the respondent contended that it had acted reasonably by attempting to uphold the judgment in its favour and that there were evidentiary issues concerning the extent of the appellant's psychiatric/psychological impairment, which justified its decision not to accept the offers.

The court found that the appellant's arguments regarding the respondent's unreasonable refusal to accept the offers were well-founded. The respondent's contention that it acted reasonably in upholding the judgment on appeal was not sufficient to justify its refusal to accept the offers. The court held that the respondent's actions were unreasonable, and thus, the costs should be assessed on an indemnity basis. Consequently, the court ordered that the respondent pay the appellant's costs of and incidental to the proceedings at first instance, except for specific reserved costs, on an indemnity basis. Additionally, the court ordered that the respondent pay the appellant's costs of and incidental to the appeal, except for costs related to the submissions on costs, on a standard basis.

The court's final orders specified that the respondent should pay the appellant's costs of and incidental to the proceedings at first instance, other than certain reserved costs, on the indemnity basis. The appellant was directed to pay the respondent's costs reserved by Robin QC DCJ on 14 March 2012 on a standard basis. Furthermore, the respondent was ordered to pay the appellant's costs of and incidental to the appeal on a standard basis, except for the costs of and incidental to the submissions on costs. Finally, the respondent was to pay one-half of the appellant's costs of and incidental to the submissions on costs, also assessed on the standard basis.

Orders

Orders of the court

1. The respondent pay the appellant’s costs of and incidental to the proceedings at first instance, other than the costs referred to in order 2 hereof, assessed on the indemnity basis.

2. The appellant pay the respondent’s costs reserved by Robin QC DCJ on 14 March 2012 assessed on the standard basis.

3. The respondent pay the appellant’s costs of and incidental to the appeal assessed on the standard basis except for the costs of and incidental to the submissions to this Court on costs.

4. The respondent pay one-half of the appellant’s costs of and incidental to such submissions on costs 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:	Wright v KB Nut Holdings Pty Ltd [2013] QCA 153
PARTIES:	ROBYN JOY WRIGHT (appellant) v KB NUT HOLDINGS PTY LTD as trustee for the KERRIE-ANN STEVENSON FAMILY TRUST (ACN 127 054 872) trading as ‘BONAPARTES SERVICED APARTMENTS’ (respondent)
FILE NO/S:	Appeal No 7435 of 2012 SC No 3367 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Orders
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	18 June 2013
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Muir JA and Margaret Wilson and Douglas JJ Judgment of the Court
ORDERS:	1. The respondent pay the appellant’s costs of and incidental to the proceedings at first instance, other than the costs referred to in order 2 hereof, assessed on the indemnity basis. 2. The appellant pay the respondent’s costs reserved by Robin QC DCJ on 14 March 2012 assessed on the standard basis. 3. The respondent pay the appellant’s costs of and incidental to the appeal assessed on the standard basis except for the costs of and incidental to the submissions to this Court on costs. 4. The respondent pay one-half of the appellant’s costs of and incidental to such submissions on costs assessed on the standard basis.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the Court allowed the appellant’s appeal and ordered that the respondent pay the appellant $494,759.38 together with interest thereon – where the parties were directed to file and exchange written submissions on costs – where the appellant seeks costs on an indemnity basis in respect of the proceedings at first instance and on appeal – where the appellant relies on a mandatory final offer under s 39 of the Personal Injuries Proceedings Act 2002 (Qld) and offers made pursuant to Chapter 9 Part 5 of the UCPR – where the respondent contends that it did not act unreasonably in not accepting the offers due to evidentiary issues regarding the extent of the appellant’s psychiatric/psychological impairment – where the respondent had the benefit of a judgment in its favour and submits that it acted reasonably in attempting to uphold the judgment on appeal – whether costs should be assessed on the indemnity basis Personal Injuries Proceedings Act 2002 (Qld), s 39, s 40(8) Uniform Civil Procedure Rules 1999 (Qld), r 360 Di Carlo v Dubois & Ors[2002] QCA 225, cited Johnston & Anor v Herrod & Ors[2012] QCA 361, cited Lawes v Nominal Defendant [2007] QSC 103, cited Wright v KB Nut Holdings Pty Ltd [2013] QCA 66, related Wright v K B Nut Holdings P/L (as Trustee for the Kerrie-Ann Stevenson Family Trust) t/as Bonapartes Serviced Apartments” (No 3) [2012] QDC 216, related Yara Nipro P/L v Interfert Australia P/L[2010] QCA 164, cited
COUNSEL:	No appearance by the appellant, the appellant’s submissions were heard on the papers No appearance by the respondent,…