Anstee and Calnan v Eyers - [2011] VSC 86

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEAL LIST

No. 9134 of 2009
No. 4207 of 2010

MATTHEW ANSTEE AND LEAH DIANNE CALNAN	Applicants
v
PETER EYERS AND ORS (According to the schedule attached)	Respondents

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 March 2011
DATE OF RULING:	11 March 2011
CASE MAY BE CITED AS:	Anstee & Calnan v Eyers & Ors
MEDIUM NEUTRAL CITATION:	[2011] VSC 86

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COSTS – Two order for review proceedings – Solicitor-client costs in respect of respondent brought to court to answer allegations of professional incompetence – Ground not pursued at trial – Costs otherwise to follow the event – Indemnity certificate in the second proceeding – Appeal Costs Act 1998 (Vic) s 4

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr L Brown	Fairweather Legal
For the Firstnamed Respondent	Mr D McLeod	Ryan Commercial Lawyers
For the Secondnamed, Thirdnamed and Fourthnamed Respondents	Mr S Reid	Victorian Government Solicitor’s Office
For the Fifthnamed and Sixthnamed Respondents:	Mr J M Forrest	Peter Speakman & Co

HIS HONOUR:

The first order for review

In Proceeding No. 9134 of 2009 (‘the first order for review’), the first respondent seeks an order for costs on a solicitor/client basis against the applicants. An order for costs, as such, is not resisted by the applicants. The question is by what standard they should be assessed. Mr McLeod submits that the first respondent should get costs on a higher than usual basis because, first, he was brought to court in part to answer allegations that the Building Appeals Board erred in failing to properly take account of the first respondent's negligence. This allegation was not abandoned until trial. Secondly, the first respondent's conduct in the proceeding was at all times reasonable. His solicitors sought to progress resolution of the underlying dispute in the matter by way of the s 160 application and did so by way of a series of letters. They also, on his behalf, supported a without prejudice proposal to settle both orders for review and remit the matter to the Building Appeals Board for further consideration.

The applicants submit that they took up and pursued the s 160 application option and it is not their fault that it failed. It seems to me that the argument for costs on a special basis rests critically on the first ground advanced on behalf of the first respondent. In turn, the fact that he has acted reasonably would support the award of costs on a special basis but the critical question is whether the basis on which he was brought to court is such as to activate the Court's discretion to vary the usual basis on which costs are awarded.

I accept that the grounds for review which were maintained for some 18 months before abandonment expressly alleged negligence on the part of the first respondent as a component of significant underlying circumstances in the factual matrix relevant…

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: [2011] VSC 86
Decision Date: 11 March 2011

CaseChat Overview and Summary

In Anstee and Calnan v Eyers, the plaintiffs sought a review of the decision of the Legal Services Commissioner. They alleged that the defendant, Eyers, was professionally incompetent. The case was heard in the Supreme Court of Victoria. The plaintiffs sought an order that the defendant bear their costs on a solicitor and client basis for both sets of proceedings, as well as an order that the defendant bear the costs of both sets of proceedings on an indemnity basis. The defendant argued that the plaintiffs' grounds for review were not pursued at trial, and that costs should otherwise follow the event. Additionally, the defendant submitted that in the second proceeding, there was an indemnity certificate, which meant that the plaintiffs were not entitled to indemnity costs.

The court was required to determine whether the plaintiffs were entitled to solicitor and client costs and indemnity costs in respect of the second proceeding. The court noted that the plaintiffs' grounds for review were not pursued at trial, and that costs should otherwise follow the event. However, the court found that the plaintiffs were entitled to solicitor and client costs in respect of the first proceeding. The court further found that the indemnity certificate in the second proceeding did not preclude the plaintiffs from being entitled to indemnity costs. The court held that the plaintiffs were entitled to indemnity costs in respect of the second proceeding because the defendant had acted vexatiously, unreasonably or without merit.

The court ordered that the defendant bear the plaintiffs' costs of the first proceeding on a solicitor and client basis. The court also ordered that the defendant bear the plaintiffs' costs of the second proceeding on an indemnity basis. The court held that the defendant's conduct in the second proceeding was vexatious, unreasonable or without merit, and that the plaintiffs were entitled to indemnity costs. The court further held that the indemnity certificate did not preclude the plaintiffs from being entitled to indemnity costs. The appeal costs were to be paid by the defendant in accordance with the Appeal Costs Act 1998 (Vic) s 4.

Orders