Fenwick v Reeks & Anor [1991] QSC 163

IN THE SUPREME COURT OF QUEENSLAND No. 614 of 1987 BETWEEN: JOHN GEORGE FENWICK Plaintiff AND: MARK ANDREW REEKS Defendant AND: F.A.I. GENERAL INSURANCE COMPANY LIMITED Defendant by Election EXTEMPORE REASONS - SENIOR MASTER HORTON O.C. Delivered the Thirteenth day of June, 1991 This is a personal injuries action in which counsel for both the plaintiff and the defendant negotiated a settlement in the following terms:- The defendant by election pay the plaintiff the sum of $290,000 together with solicitor and client costs of the action to be taxed. Both parties obviously considered that this agreement would dispose of the action and I was notified that the matter would proceed by way of a consent order. This morning apparently the issue was raised between counsel as to the costs of the 5th April, 1991 when the defendant successfully applied for an adjournment of the trial having been handed a short period of time before, a medical report which allegedly substantially altered the nature and extent of the plaintiff's injuries. On that occasion I -- 1 of 2 -- 2 reserved the costs and regrettably these reserved costs were not adverted to by either counsel when concluding their agreement on behalf of their clients. I note that both counsel before me today were present and representing their respective clients on the 5th April, 1991 and one would have thought that at least one of those two counsel would have had in his mind the fact that the reserved costs were still alive. Mr. Trotter of counsel obviously did not advert to that fact. Nevertheless I have come to the firm conclusion (somewhat regretfully I must say) that the compromise reached between the parties in the absence of a specific reference to the reserved costs must be taken to compromise all outstanding unresolved claims between the parties both as to the claim itself and the costs. It is clear from 0.91 r.15 that the costs reserved on the 5th April, 1991 fall into an unresolved issue between the parties and hence, in my view, the agreement struck is one which must be taken to resolve that hitherto unresolved issues. Accordingly, I am of the view that there is no live issue for my determination and I make the orders in terms sought by the parties which is:- 1. Adjourn the matter to the settlement list. 2. The defendant by election to pay the plaintiff's costs of and incidental to the action to be taxed on a solicitor/client basis. -- 2 of 2 --