Baker v Ambridge Investments Pty Ltd (in liq) (No 2)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2010 0034

THEODORE BAKER

and

CAREERPATH AUSTRALIA PTY LTD (ACN 084 086 064)

and

IMF PTY LTD (ACN 075 604 027)

and

BREAK FAST INVESTMENTS PTY LTD (ACN 090 648 990)

and

OXLEY GROUP FINANCE PTY LTD (ACN 107 651 507)

First Appellant

Second Appellant

Third Appellant

Fourth Appellant

Fifth Appellant

AMBRIDGE INVESTMENTS PTY LTD (Receivers Appointed)

(In Liquidation) (ACN 077 299 051)

and

CHRISTOS VOUKIDIS

and

C & O VOUKIDIS PTY LTD (ACN 064 693 0554)

and

MARK ANDREW CYRIL STANLEY (NO 2)

First Respondent

Second Respondent

Third Respondent

Fourth Respondent

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JUDGES:	BUCHANAN and TATE JJA and ROBSON AJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	19, 20 July and 4 November 2011
DATE OF JUDGMENT:	1 December 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 400
JUDGMENT APPEALED FROM:	[2010] VSC 59 (Vickery J)

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COSTS – Application for indemnity costs by successful defendant to appeal – No special circumstances that would justify a departure from the usual order as to costs – Application refused – Costs to be taxed on a party and party basis.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr R A Brett QC with Mr J L Evans	Mason Sier Turnbull
For the First Respondent	Mr P W Collinson SC with Mr C G Juebner	Foster Nicholson Jones
No appearance for the Second, Third and Fourth Respondents

BUCHANAN JA
TATE JA
ROBSON AJA

The appellants appealed against various declarations made by the trial judge. The appeal was dismissed. The first respondent seeks its costs on an indemnity basis, or alternatively on a solicitor and client basis.

We have received written submissions from both the first respondent and the appellants on the issue.

The first respondent contends that the appeal was brought in disregard of known facts (namely the existence of the unincorporated joint venture) and, properly advised, the appellants should have known that they had no chance of success in the appeal. In our view, the submissions of the first respondent merely emphasises the points that rendered the first respondent successfully able to resist the appeal.

In our opinion, the submissions do not point to any special circumstances that would justify a departure from the usual order as to costs.

The order of the court shall be that the appellants pay the respondents costs of the appeal and that such costs be taxed on a party and party basis.

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CaseChat Overview and Summary

The case of Baker v Ambridge Investments Pty Ltd (in liq) (No 2) involved the applicant, Baker, seeking indemnity costs from the respondent, Ambridge Investments Pty Ltd, which was in liquidation. The matter was heard in the Supreme Court of Victoria. The applicant sought these costs on the basis that he had been successful on appeal in an earlier proceeding and the respondent had acted unreasonably in continuing to pursue the original claim despite it being unsuccessful.

The central legal issue before the court was whether special circumstances existed that would warrant a departure from the usual order that costs follow the event, and whether the respondent's conduct warranted an indemnity costs order. The court needed to determine if the respondent's actions were unreasonable or vexatious enough to justify an exceptional costs order. The applicant argued that the respondent's persistence in the litigation despite clear indications of an impending loss was unreasonable and merited indemnity costs.

The court carefully considered the evidence and submissions from both parties. It found that while the respondent's conduct was arguably vexatious, there were no special circumstances that would justify an indemnity costs order. The court held that the usual order as to costs, where each party bears their own costs, was appropriate in this case. The court acknowledged the applicant's success on appeal but concluded that this alone did not warrant an exceptional costs order. The application for indemnity costs was thus refused, and the matter was remitted for taxation of costs on a party and party basis.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established