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Amorosi v Robinson (No 2)

Amorosi v Robinson (No 2)

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Case Copied 20 December 2024 37 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2021 00877

VANESSA JOYLEEN AMOROSI	Plaintiff
and
JOYLEEN MONA ROBINSON	First Defendant
and
LLAMA INVESTMENT HOLDINGS PTY LTD (as trustee for the LLAMA INVESTMENT TRUST)	Second Defendant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 October 2024 and further written submissions filed on 18 October 2024
DATE OF JUDGMENT:	20 December 2024
CASE MAY BE CITED AS:	Amorosi v Robinson (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 806

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COSTS – Trustee’s right of indemnity from trust property – Failure to execute trust with reasonable diligence and care – Expenses improperly incurred – Loss of trustee’s right of indemnity - Di Benedetto v Kilton Grange Pty Ltd (2017) 16 ASTLR 463 - Hopkins v Edwards [2020] VSC 456.

COSTS – Where plaintiff successful in claim - Where defendant successful in counterclaim – Claim and counterclaim separate events – Costs to follow events – No special costs order - Chell EngineeringLtd v Unit Tool and Engineering Co Ltd [1950] 1 All ER 378 - Yunghanns v Colquhoun-Denvers [2021] VSCA 15.

COSTS – Where plaintiff seeks indemnity costs from expiry of Calderbank offers – Calderbank offers not unreasonably refused – Terms uncertain and unclear - Defendant achieved more favourable result at trial - Costs awarded on standard basis - Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 - M T Associates Pty Ltd v Aqua-Max Pty Ltd & Anor (No 3) [2000] VSC 163 - Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435 - United Petroleum Australia Pty Ltd v Herbert Smith Freehills (No 2) [2018] VSC 501.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Fetter	DST Legal
For the Defendants	Mr D. Harrison	Moray & Agnew

HIS HONOUR:

Introduction

These are the reasons for judgment of the Court in respect of liability for costs following the trial of the proceeding. In the result the plaintiff, Ms Amorosi, succeeded in her claims; however Mrs Robinson, the defendant and plaintiff by counterclaim, also succeeded in a counterclaim.

The beneficial ownership of the Boundary Road property[1] was the central issue in the trial of the proceeding. Ms Amorosi and Mrs Robinson are registered on the title of the property as tenants in common in equal shares. As at August 2024, its value was in the vicinity of $2.5 million.
[1]In these reasons for judgment, I use the abbreviations defined in the principal reasons for judgment, Amorosi v Robinson [2024] VSC 466 (the Reasons). These further reasons for judgment assume knowledge of the Reasons and are to be read together with them.

In my reasons for judgment, I rejected Mrs Robinson’s claims in respect of the Boundary Road property and determined that, subject to Ms Amorosi assuming sole responsibility for the mortgage over the property, Ms Amorosi was entitled to appropriate relief…

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.

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Details

Case: [2024] VSC 806
Decision Date: 20 December 2024

CaseChat Overview and Summary

The case of Amorosi v Robinson (No 2) involved a dispute concerning the rights of a trustee to seek indemnity from trust property, following allegations of a failure to execute the trust with reasonable diligence and care, resulting in improperly incurred expenses. The case was heard in the Supreme Court of Victoria. The plaintiff, Amorosi, sought indemnity costs from the defendant, Robinson, following the expiry of Calderbank offers. Amorosi argued that the defendant had not unreasonably refused the offers and that the terms were uncertain and unclear, thereby justifying indemnity costs. Conversely, Robinson contended that Amorosi had not achieved a more favourable result at trial and that, as such, indemnity costs should not be awarded.

The court was required to determine whether Amorosi was entitled to indemnity costs from Robinson, given that the Calderbank offers had expired and that Amorosi had been successful in their claim but Robinson had been successful in their counterclaim. The court also had to consider whether the Calderbank offers were unreasonably refused and whether the terms were uncertain and unclear. Furthermore, the court needed to assess whether Amorosi had achieved a more favourable result at trial, which would affect the award of costs.

In delivering the judgment, the court found that Amorosi was not entitled to indemnity costs from Robinson. The court held that the Calderbank offers were not unreasonably refused, and the terms were uncertain and unclear. However, the court also found that Amorosi had not achieved a more favourable result at trial, as Robinson had been successful in their counterclaim. Accordingly, the court held that costs should follow the events, and no special costs order was warranted. The court held that the plaintiff's claim and the defendant's counterclaim were separate events, and costs should be awarded on the standard basis.

The court ordered that the costs of the proceeding be awarded on the standard basis, with each party bearing their own costs. The court emphasised that the plaintiff's success in their claim did not automatically entitle them to indemnity costs, particularly where the defendant had also been successful in their counterclaim. The court concluded that the parties should bear their own costs, as the plaintiff had not achieved a more favourable result at trial.

Orders