Xu v Thurgood (No 2)

[2008] QSC 319

SUPREME COURT OF QUEENSLAND

CITATION:

Xu v Thurgood & Anor (No 2) [2008] QSC 319

PARTIES:

WEI (WENDY) XU
(plaintiff)
v
TORY THURGOOD
(first defendant)
and
SUNCORP METWAY INSURANCE LTD
(second defendant)

FILE NO:

BS10356/07

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2008

JUDGE:

Martin J

ORDER:

1.The defendants pay the plaintiff’s costs of the proceeding up to 31 October 2007.
 2. The plaintiff pay the defendants’ costs of the proceeding incurred after 1 November 2007.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – OTHER CASES – the plaintiff made a mandatory final offer pursuant to the Motor Accident Insurance Act before the litigation commenced – the judgment sum awarded was more favourable than this offer – whether the plaintiff should pay the defendant’s cost from before the date on which the offer was made.

PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - PROCEDURE UNDER RULES OF COURT - STAYING PROCEEDINGS - where there is evidence that costs to be paid by the plaintiff to the defendant exceed the amount of the judgment – whether enforcement of the judgment should be stayed pending an assessment of costs.

Lawes v Nominal Defendant [2007] QSC 103
Monement v Faux & Anor [2005] QSC 342
Reardon-Smith v Torres-Farr & Anor [2007] QSC 8
Young v Bayliss & Anor [2005] QSC 152

COUNSEL:

Mr M Grant-Taylor SC for the plaintiff
Mr S C Williams QC with Ms J McClymont for the second defendant

SOLICITORS:

Shine Lawyers for the plaintiff
Jensen McConaghy Solicitors the second defendant

1. On 21 November 2008 I gave judgment for the plaintiff in this matter in the sum of $74,556.39. That was less than the defendant’s mandatory final offer made on 31 October 2007. The plaintiff does not oppose an order that she pay the defendant’s standard costs of the proceedings on and from 1 November 2007.

1. The plaintiff, though, submits:

   1.          That such an order should be confined to the defendant’s costs incurred on and after 1 November 2007, and,

   2.          The plaintiff should recover her costs incurred up to and including 31 October 2007.

2. The defendant argues that the second order cannot be made because an order for those costs “would not be an order for costs of ‘the proceedings’, which had not then commenced, and is beyond the power of the court”.

1. This was an action which was subject to the provisions of the Motor Accident Insurance Act 1994 (“the Act”). That Act establishes a regime which requires a plaintiff to undertake a series of steps before any action subject to the Act can be commenced.

1. The last of those steps is taking part in the compulsory conference required by s 51A:

   “(1)Before the claimant brings an action in a court for damages for personal injury arising out of a motor vehicle accident, there must be a conference of the parties (the compulsory conference).”

2. At least seven days before…