Burnitt v Williams (No 2) [2013] QDC 167

1 DISTRICT COURT OF QUEENSLAND CITATION: Burnitt v Williams (No 2) [2013] QDC 167 PARTIES: Peter Raymond Burnitt (Plaintiff) v Robert Rex Williams (Defendant) FILE NO/S: 1100/12 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court in Brisbane DELIVERED ON: 24 July 2013 DELIVERED AT: Warwick HEARING DATE: On the papers, submissions received 15 July 2013 JUDGE: Kingham DCJ ORDER: 1. The defendant must pay the plaintiff interest in the amount of $109,732.53, calculated from 21 June 2011 to 15 July 2013; and 2. The defendant must pay the plaintiff’s costs of and incidental to the proceedings, including reserved costs, to be assessed on an indemnity basis. CATCHWORDS: CIVIL – INTEREST – where the plaintiff claimed interest from 1 July 2009 – where the plaintiff commenced proceedings on 21 June 2011 – where the Court has discretion to award interest - whether interest of the amount claimed should be awarded. CIVIL – COSTS – INDEMNITY COSTS – PLAINTIFF OFFER TO SETTLE – RULE 360 UNIFORM CIVIL PROCEDURE RULES 1999 (QLD) - where the plaintiff made an offer to settle the matter before trial – where the defendant did not accept that offer – where judgment was later entered for the plaintiff – where judgment was no less favourable to the plaintiff than the terms of the offer to settle - whether the plaintiff is entitled to costs on an indemnity basis. Civil Proceedings Act 2011 (Qld), s 58(3). -- 1 of 4 -- 2 Uniform Civi, Procedure Rules 1999 (Qld), rr 360 & 681. Shantex Pty Ltd v Luckman [2010] QSC 96, followed. Hegarty v Queensland Ambulance Service [2007] QSC 110, followed. COUNSEL: Mr AJH Morris QC, with Mr VG Brennan, for the Plaintiff. No appearance for the Defendant. SOLICITORS: Simmonds, Crowley & Galvin Solicitors for the Plaintiff. No appearance for the defendant. Background [1] On 15 July 2013, I ordered Mr Williams to pay Mr Burnitt the sum of $550,000. I invited the parties to provide written submissions on interest and costs, in the event that they were unable to reach agreement on the orders to be made. Mr Burnitt’s counsel provided me with written submissions on these matters. Despite the efforts of those who represented Mr Williams at trial, no submissions were received from Mr Williams. The claim for interest [2] The Court has discretion to award interest on the whole or any part of the judgment sum for the whole or any part of the period between the date when the cause of action arose and the date of the judgment.1 [3] In finding for Mr Burnitt, I accepted his evidence that he and Mr Williams agreed that he would pay him the judgment sum in May 2010. Mr Burnitt has claimed interest from 1 July 2010. [4] During his evidence, Mr Burnitt said he had conversations with Mr Williams later in 2010, when Mr Williams told him the money would be paid on other dates. He did not demand immediate payment and appeared to have acquiesced in payment being deferred. He commenced proceedings on 21 June 2011. Prior to that date, he did not make a formal demand for payment. [5] Given that history, I consider it is appropriate to award interest calculated from the date the proceedings were commenced. That is the sum of $109,732.53. The claim for indemnity costs [6] In civil litigation, the default position is that costs “are in the discretion of the court, but follow the event, unless the court orders otherwise.”2 That position only applies if the Rules, also, do not provide otherwise.3 Relevantly to this matter, r 360 provides that if: 1 Section 58(3) Civil Proceedings Act 2011 (Qld). 2 Rule 681 Uniform Civil Procedure Rules 1999 (Qld). 3 Rule 681(2) Uniform Civil Procedure Rules 1999 (Qld). -- 2 of 4 -- 3 (1) If - (a) the plaintiff makes an offer to settle that is not accepted by the defendant and the plaintiff obtains a judgment no less favourable than the offer to settle; and (b) the court is satisfied that the plaintiff was at all material times willing and able to carry out what was proposed in the offer; the court must order the defendant to pay the plaintiff’s costs calculated on the indemnity basis unless the defendant shows another order for costs is appropriate in the circumstances. [7] On 13 February 2013, Mr Burnitt formally offered to settle these proceedings. The offer was on the terms that Mr Williams pay Mr Burnitt $575,000 (inclusive of interest) and that there be no order as to costs. Mr Williams was granted fourteen days within which to accept the offer to settle, but did not do so. Neither Mr Burnitt nor Mr Williams made any further offer to settle.4 [8] The offer must be evaluated “in the light of circumstances as they exist[ed] at the time the offer is made.”5 [9] Whether the terms of a party’s offer under the Rules are more favourable than the judgment depends upon the practical effect of the offer and the terms upon which the proceeding was ultimately determined.6 [10] If Mr Williams had accepted the offer of 13 February, he would have been obliged to pay no more than $575,000. [11] I have awarded interest calculated at the default rate from the date the proceedings were commenced. Applying the same approach to interest, as at 13 February 2013, interest would have amounted to $90,863.02. [12] Even without Mr Burnitt’s offer to compromise by forgoing any claim for costs, his offer was more favourable than the judgment, including interest calculated from 21 June 2011 to the date of the offer. [13] I am satisfied that Mr Burnitt was willing and able to settle on the terms offered, which were more favourable than the judgment he obtained against Mr Williams. The requirements of Rule 360 have been satisfied. Mr Williams has not shown a different order is appropriate. Mr Burnitt should have his costs assessed on the indemnity basis. Orders [14] I make the following orders: 4 Affidavit of Glenn William McFarlane, sworn 15 July 2013: paragraph [2]. 5 Castro v. Hillery, [2003] 1 Qd.R. 651, 664 [75] (Williams JA). 6 Shantex Pty Ltd v Luckman [2010] QSC 96 [28]. -- 3 of 4 -- 4 1. The defendant must pay the plaintiff interest in the amount of $109,732.53, calculated from 21 June 2011 to 15 July 2013; and 2. The defendant must pay the plaintiff’s costs of and incidental to the proceedings, including reserved costs, assessed on an indemnity basis. -- 4 of 4 --