UCPR: Indemnity costs & when it is appropriate to depart from mandatory offers

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

Further to my earlier post, his Honour Applegarth J ordered indemnity costs. Integral in the decision was the finding by his Honour that the defendant could have reasonably have considered the UCPR offer during the period it was open for acceptance [5] – [13]. His Honour considered the mandatory offers in 2013 were not determinative in resolving costs because after that time the plaintiff’s condition deteriorated, but rather r.360 of the UCPR was engaged: Motor Accident Insurance Act 1994 (Qld), s 51C(10); and see Bulsey v State of Queensland [2016] QCA 158 at [32] – [42].

His Honour found that by February 2016 that defendant was in a position to be reasonably informed to make a decision [15] and approved of GEJ & MA Geldard Pty Ltd v Mobbs & Ors (No 3) [2011] QSC 297 at [48] – [55]; and Ross v Suncorp Metway Insurance Ltd [2002] QCA 93 at [27] – [30], that an offer must be considered in terms of what is known at the time [16].

The offers made by the defendant prior to trial and during the trial did not cause his Honour to depart from making an order in terms of r.360(1) [20] & [21] and ordering indemnity costs.

David Cormack – Brisbane Barrister & Mediator

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