Wynne v Davey (No 2) - [2015] QSC 227

SUPREME COURT OF QUEENSLAND

CITATION:

Wynne v Davey & Anor (No 2) [2015] QSC 227

PARTIES:

MARK DAVID WYNNE

(plaintiff)

v
JOHNATHAN ALEXANDER DAVEY

(first defendant)
and
NRMA INSURANCE ACN 000 016 722
(second defendant)

FILE NO/S:

No 12089 of 2014

DIVISION:

Trial Division

PROCEEDING:

Costs

ORIGINATING COURT:

Supreme Court at Brisbane – [2015] QSC 200

DELIVERED ON:

7 August 2015

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers; written submissions received on 30 July 2015 and 31 July 2015

JUDGE:

Burns J

ORDER:

1. That judgment be entered for the plaintiff against the defendants in the sum of $1,015,104

2. That the defendants pay the plaintiff’s costs of and incidental to the proceeding to be calculated on an indemnity basis

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where plaintiff made an offer to settle pursuant to Part 5 of Chapter 9 of the Uniform Civil Procedure Rules 1999 (Qld) prior to trial – where offer was not accepted and trial proceeded – where the judgment awarded was more than the amount offered – whether the court should depart from r 360 of the Uniform Civil Procedure Rules 1999 (Qld)

Motor Accident Insurance Act 1994 (Qld)

Uniform Civil Procedure Rules 1999 (Qld), r 360

Calderbank v Calderbank [1975] 3 All ER 333, cited
Campbell v Jones [2003] 1 Qd R 630; [2002] QCA 332, cited
Castro v Hillery [2003] 1 Qd R 651; [2002] QCA 359, cited
McChesney v Singh & Ors [2004] QCA 217, cited
Morgan v Johnson (1998) 44 NSWLR 578, cited
Pollock v Thiess Pty Ltd & Ors (No 3) [2014] QSC 121, cited

COUNSEL:

J Kimmins for the plaintiff

G O’Driscoll for the defendants

SOLICITORS:

Shine Lawyers for the plaintiff

Moray & Agnew for the defendants

On 17 July 2015, judgment was handed down on the issue of liability. In percentage terms, liability was apportioned 85:15 in the plaintiff’s favour. Since then, written submissions have been received from the parties regarding two issues: (1) the amount for which judgment should now be entered and (2) the appropriate order as to costs.

Judgment

Prior to trial the parties reached agreement on the quantum of damages, which agreement was confirmed by correspondence passing between the parties’ solicitors on 11 and 16 March 2015. As there appears, quantum was agreed in the amount of $1,200,000 (inclusive of rehabilitation expenses totalling $5,760). As such, judgment will be entered for the plaintiff against the defendants in the sum of $1,015,104, being 85 per cent of the agreed quantum (net of the rehabilitation expenses).[1]

Costs

[1] Both parties submitted that a judgment in that amount should be entered.

For the plaintiff, it was submitted that there should be an order that the second defendant pay his costs of the proceeding to be calculated on an indemnity basis. In support of that submission, reliance was placed on the making of two formal offers to settle in…

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 Wynne v Davey (No 2)

Details

AGLC: Wynne v Davey (No 2) [2015] QSC 227
Case: [2015] QSC 227
Decision Date: 7 August 2015

CaseChat Overview and Summary

The matter of Wynne v Davey (No 2) involved a dispute between the plaintiff, Wynne, and the defendants, Davey. The central issue in this case was the determination of costs and whether the court should order costs on an indemnity basis. This followed a failed attempt to settle the matter prior to trial, as the plaintiff had made an offer to settle in accordance with Part 5 of Chapter 9 of the Uniform Civil Procedure Rules 1999 (Qld), which was not accepted by the defendants. The trial proceeded, resulting in a judgment that awarded the plaintiff a sum greater than the amount offered in the settlement attempt. The court had to determine whether it should depart from rule 360 of the Uniform Civil Procedure Rules 1999 (Qld) in the context of ordering costs on an indemnity basis.

The primary legal issue before the court was whether the court should order costs on an indemnity basis when the plaintiff had made a settlement offer that was not accepted, and the judgment awarded was more than the amount offered. The court had to consider whether the failure to accept the settlement offer warranted a departure from the general rule regarding costs. This required an analysis of the circumstances under which the court may exercise its discretion to order costs on an indemnity basis, particularly in light of the Uniform Civil Procedure Rules 1999 (Qld).

In its decision, the court held that the defendants' failure to accept the plaintiff's settlement offer justified departing from the general rule regarding costs. The court found that the amount awarded at trial exceeded the settlement offer, and therefore, it was appropriate to order costs on an indemnity basis. The court emphasised the importance of encouraging settlement negotiations and noted that such an order would serve as a deterrent against the refusal of reasonable settlement offers. Consequently, the court ordered that the defendants pay the plaintiff's costs of and incidental to the proceeding on an indemnity basis, reflecting the court's view that the defendants' conduct warranted such a penalty.

The court made two final orders in this matter. Firstly, judgment was entered for the plaintiff against the defendants in the sum of $1,015,104. Secondly, the court ordered the defendants to pay the plaintiff's costs of and incidental to the proceeding, to be calculated on an indemnity basis. This decision underscores the court's willingness to enforce the principle of encouraging settlement negotiations by penalising parties who unreasonably refuse reasonable offers to settle.

Orders

Orders of the court

1. That judgment be entered for the plaintiff against the defendants in the sum of $1,015,104

2. That the defendants pay the plaintiff’s costs of and incidental to the proceeding to be calculated on an indemnity 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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