Denkewitz v Hodgson & Ors t/a Murray Lyons & Co [1998] QSC 262

IN THE SUPREME COURT OF QUEENSLAND No. 1380 of 1994 Before Mr Justice Ambrose [Denkewitz v Hodgson & Ors t/a Murray Lyons & Co] BETWEEN CLIVE WILLIAM DENKEWITZ Plaintiff AND DOUGLAS HECTOR HODGSON, JOHN CAMPBELL MACCALLUM CHRISTOPHER MARK WRIGHT AND BEVLEE JOY REASTON TRADING UNDER THE NAME OR STYLE OF “MURRAY LYONS & CO.” Defendants ORDER FOR COSTS - B.W. AMBROSE J. Delivered the 20th day of November 1998 1 On 6 November 1998 the plaintiff recovered judgment against the defendants in the sum of $38,574.54. 2 I was informed when judgment was delivered that on 25 June 1998 the defendants made an offer to settle the plaintiff’s claim in the sum of $60,000 plus costs on the District Court Scale. 3 I assume that the offer to settle comes within R.S.C. O.26 r.4. 4 The action came on for hearing on 3 August 1998. The hearing lasted for four days. 5 I was informed that the offer was not accepted because the plaintiff was not prepared to accept costs assessed on the District Court Scale. 6 Under R.S.C. O.26 r.9(2) I am required in the circumstances to order that the defendants pay the plaintiff’s costs on a party and party basis up to and including the day of service of the offer to settle and to order that the plaintiff pay the defendants’ costs fixed on a party and party -- 1 of 3 -- 2 basis after that day of service “unless the plaintiff shows that some other order for costs is proper in the circumstances”. 7 On the facts of this case the plaintiff has not in my view shown that an order other than that contemplated under O.26 r.9(2) “is proper in the circumstances”. 8 Under O.91 r.2(3) I do have a discretion to order that the plaintiff at least recover only those costs which he would have recovered had he brought his action in the District Court. 9 In my view this was a quite complex case involving professional negligence on the part of two firms of solicitors in tandem. The negligence of the first solicitors involved their failure to sue the right defendant in an action instituted on behalf of the plaintiff in the Supreme Court in Cairns. 10 The negligence of the second firm of solicitors involved their failure to institute an action for professional negligence against the first firm of solicitors within the limitation period. They did in fact institute an action after the expiration of the limitation period. That action was also instituted in the Supreme Court. 11 This third action instituted on behalf of the plaintiff was unsurprisingly instituted in the Supreme Court. 12 Essential to the plaintiff’s claim was the value of the chance he lost to recover a judgment against the first firm of solicitors and this involved showing what judgment he would probably have recovered had the first firm of solicitors not negligently deprived him of that chance. That issue involved consideration of both liability and quantum upon evidence of events that occurred nearly eighteen years ago. 13 To the extent that the plaintiff’s limited success in the action was due to the delay of which each of the defendants was guilty, that in my view is a circumstance to which weight should be given. -- 2 of 3 -- 3 14 I also take into account that no reason was advanced as to why the plaintiff ought not pay the costs of the defendants subsequent to their payment into court of the sum to which I have referred to be taxed as an action defended in the Supreme Court. 15 For all those reasons, but principally because in my view it was reasonable for the plaintiff to proceed in the Supreme Court having regard to the nature and complexity of the factual and legal issues in the matter I decline to exercise my discretion against the plaintiff under R.S.C. O.91 r.2(3). 16 In my view also the plaintiff could not be said to have been wholly unreasonable in declining to accept an offer which involved only payment of costs on the District Court Scale, although being wise after the event of course the plaintiff obviously would have been well advised to accept the offer in fact made. In my judgment upon the evidence presented it was quite unlikely that the quantum of damage recovered would ever have approached the limit of the jurisdiction of the District Court. 17 Consequently I make the following orders as to costs: (1) I order that the defendants pay the plaintiff’s costs fixed on a party and party basis for an action pursued in the Supreme Court up to and including the day of service of the defendants’ offer to settle on 25 June 1998; (2) I order that the plaintiff pay the costs of the defendants fixed on a party and party basis after the date of service of that offer to settle to be taxed also on the basis of an action pursued in the Supreme Court. -- 3 of 3 --