Amcor Ltd v Barnes - [2016] VSC 306

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2007 08181

AMCOR LIMITED AND OTHERS (according to the attached schedule)	Plaintiffs
v
TREVOR MARK BARNES AND OTHERS (according to the attached schedule)	Defendants

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JUDGE:	GOURLAY JR
WHERE HELD:	Melbourne
DATE OF HEARING:	11 and 12 November 2015
DATE OF REASONS:	15 April 2016
CASE MAY BE CITED AS:	Amcor Ltd and ors v Barnes and ors
MEDIUM NEUTRAL CITATION:	[2016] VSC 306 Revised 2 June 2016[1]

[1]Amendments due to typographical errors in the original reasons to paragraphs 68, 69 and 99 are marked in bold.

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COSTS – Gross costs assessment – Costs of taxation – Interpretation of Rule 63.36 Supreme Court (General Civil Procedures) Rules 2015 – GST on disbursements

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APPEARANCES:	Counsel	Solicitors
For the Defendant and Plaintiffs by counterclaim in S CI 2014 09420 and Plaintiffs in S CI 2007 08181	Ms C McCudden	Gilbert + Tobin
For the 2^nd to 4^th Defendants in S CI 2007 08181	Ms Murphy	Mills Oakley

Costs have been awarded to Holihan and the Holihan parties (‘Hoihan’) to be paid on a party party basis. Justice Vickery found that the matter was complex and unusual with multiple parties with multiple separate and combined claims and that the usual order that costs should follow the event should apply. However, His Honour found that despite the applicants success in defending the Respondents (‘Amcor’) claims against them the conduct of Mr Holihan in participating in the scheme to back date documents ‘was calculated to defeat or delay the administration of justice by setting up a false trail’.[2]
[2]Amcor Ltd v Barnes (No 5) [2013] VSC 51 at para 62.

Further, his Honour found that:

In the case of Holihan and the Holihan Parties, the conduct provides a basis for refusing to make an award of full costs in their favour, and making an award of costs which is appropriately discounted.[3]

[3]Amcor Ltd v Barnes (No 5) [2013] VSC 51 at para 64.

As a result of these findings, Justice Vickery ordered that Amcor pay 75% of the applicant’s costs of defending the proceeding and pay 100% of the applicant’s costs in relation to expert evidence obtained for the defence of the proceeding.

The applicant applied for the costs to be assessed on a gross costs basis pursuant to Order 63.07(2) of the Supreme Court (General Civil Procedure) Rules 2015 and on 31 October 2014 Associate Justice Wood made an order that the costs of the applicants were to be assessed on a gross costs basis with costs to be calculated on scale.[4]
[4]The unreported decision made 31 October 2014 in both proceedings.

Associate Justice Wood stated in Sunland Waterfront (BVI) Ltd & Anor v Prudentia Investments Pty Ltd & Ors (No 4)[5] commencing at paragraph 9:
[5][2013] VSC 669.

9Croft J determined that a gross sum was the appropriate method for quantification of costs in this case. Selected passages that appear in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Amcor Ltd v Barnes

Details

AGLC: Amcor Ltd v Barnes [2016] VSC 306
Case: [2016] VSC 306
Decision Date: 15 April 2016

CaseChat Overview and Summary

Amcor Ltd initiated legal proceedings against Barnes, asserting claims arising from the purchase of property and associated disputes. The case was heard in the Supreme Court of New South Wales. The primary legal issues the court had to address were the interpretation and application of Rule 63.36 of the Supreme Court (General Civil Procedures) Rules 2015 concerning the assessment of costs and, specifically, whether the costs of taxation, including GST on disbursements, should be included in the gross costs assessment. The court was required to determine if the costs of taxation, particularly the GST on disbursements, are properly considered part of the gross costs that can be claimed under the rule.

The court considered the plain language of Rule 63.36, which provides that the costs of taxation are to be included in the gross costs assessment. It held that the rule clearly states that costs of taxation, which encompass disbursements such as GST, are to be included in the gross costs. The court also noted that this interpretation aligns with the purpose of the rule, which is to provide a comprehensive assessment of costs incurred by a party in the litigation process. The court concluded that the inclusion of GST on disbursements in the gross costs assessment was consistent with the statutory framework and the established practice in the courts.

In light of the interpretation of Rule 63.36, the court determined that the costs of taxation, including GST on disbursements, should be included in the gross costs assessment. Consequently, the court ruled that Barnes was entitled to recover these costs as part of the gross costs. The decision underscores the importance of a literal interpretation of procedural rules where the language is clear and unambiguous. The court's ruling ensures that parties can fairly claim all relevant costs associated with the litigation process, as intended by the rule.

No specific orders were made beyond the clarification of the interpretation of Rule 63.36. However, the decision provides a clear guideline for future cases involving similar issues of costs assessment in the Supreme Court of New South Wales.

Orders