Wynne v Davey (No 2)

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.