Xu v Thurgood (No 2)

In the matter of Xu v Thurgood (No 2), the plaintiff, Xu, sued the defendants for damages following a motor vehicle accident. The case was heard in the Supreme Court of Queensland. Xu made a mandatory final offer under the Motor Accident Insurance Act before the litigation commenced, which the defendants rejected. The judgment awarded a sum more favourable than this offer, leading to a dispute over which party should bear the costs incurred before the date of the offer. Additionally, the defendants sought a stay of enforcement of the judgment, arguing that the costs they would have to pay Xu exceeded the amount of the judgment.

The court was tasked with determining whether Xu should pay the defendants' costs from before the date the offer was made, given that the judgment sum was more favourable than the offer. The court also needed to decide if enforcement of the judgment should be stayed pending an assessment of costs, given the defendants' contention that the costs they would incur exceeded the judgment amount.

The court held that the general rule regarding costs should be departed from in this case. Given the judgment sum was more favourable than the offer, Xu should not be required to pay the defendants' costs from before the date the offer was made. However, Xu was ordered to pay the defendants' costs incurred after the offer date. The court also ruled that enforcement of the judgment should not be stayed, as the defendants had not provided sufficient evidence to support their claim that the costs would exceed the judgment amount.

The court's final orders were that the defendants pay Xu's costs of the proceeding up to 31 October 2007, and that Xu pay the defendants' costs of the proceeding incurred after 1 November 2007.