Yamaguchi v Phipps (No 2)

[2016] QSC 170

SUPREME COURT OF QUEENSLAND

CITATION:

Yamaguchi v Phipps & Anor (No 2) [2016] QSC 170

PARTIES:

MINA YAMAGUCHI

(plaintiff)

v
ROBERT WILLIAM FRANCES PHIPPS

(first defendant)
and
QBE INSURANCE (AUSTRALIA) LIMITED
ABN 78003191035
(second defendant)

FILE NO:

SC No 10061 of 2013

DIVISION:

Trial Division

PROCEEDING:

Further hearing on orders and costs

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

2 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2016

JUDGE:

Applegarth J

ORDER:

The second defendant pay the plaintiff her costs of and incidental to the proceeding to be assessed on the indemnity basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – OFFERS TO SETTLE UNDER RULES – where the defendant rejected the plaintiff’s offer to settle made under the Uniform Civil ProcedureRules 1999 (Qld) (“UCPR”) – where the plaintiff obtained at trial an order no less favourable than the offer – where rule 360, UCPR requires the Court to order costs on the indemnity basis unless the defendant can show another order is appropriate in the circumstances – whether the defendant has shown that another order is appropriate

Guardianship and Administration Act 2000 (Qld)
Uniform Civil Procedure Rules 1999 (Qld), r 359, r 360(1)
Motor Accident Insurance Act 1994 (Qld), s 51C(10)

Bulsey v State of Queensland [2016] QCA 158, cited

GEJ & MA Geldard Pty Ltd v Mobbs & Ors (No 3) [2011] QSC 297, cited
Ross v Suncorp Metway Insurance Ltd [2002] QCA 93, cited

Yamaguchi v Phipps & Anor [2016] QSC 151, cited

COUNSEL:

S C Williams QC, with A J Williams, for the plaintiff

G F Crow QC for the defendants

SOLICITORS:

MBA Lawyers for the plaintiff

McInnes Wilson Lawyers for the defendants

1. I published my reasons in this personal injury proceeding on 28 June 2016.[1]  The parties were directed to confer in relation to the calculation of administration and management fees, and to submit draft orders based on my reasons.  The parties have agreed orders, including the judgment sum and a further sum for administration and management fees, together with consequential orders in relation to the administration of monies that are to be held pursuant to the Guardianship and Administration Act 2000 (Qld). The only issue for me to decide is whether the plaintiff’s costs of and incidental to the proceeding should be assessed on the standard or indemnity basis.

   [1]     Yamaguchi v Phipps & Anor [2016] QSC 151.

2. The defendants’ written submissions accepted that r 360(1) of the Uniform Civil Procedure Rules 1999 (Qld) is engaged. As a result, I must order the plaintiff’s costs on the indemnity basis “unless the defendant shows another order for costs is appropriate in the circumstances”.

3. In oral submissions the defendants submitted, however, that the formal offer made by the plaintiff dated 5 February 2016, which offered to settle the matter against the defendants by payment of the sum of $1,445,000 plus management and administration fees and costs and…