Bantick v Boss Properties Pty Ltd (No 2) - [2000] VSC 165

SUPREME COURT OF VICTORIA
COMMON LAW DIVISION	Not Restricted

No. 4397 of 1998

BRADY ROY BANTICK	Plaintiff
v
BOSS PROPERTIES PTY LTD (ACN 006 802 941)	Defendant

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JUDGE:	Gillard J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 April 2000
DATE OF JUDGMENT:	3 May 2000
CASE MAY BE CITED AS:	Bantick v Boss Properties Pty Ltd (No. 2)
MEDIUM NEUTRAL CITATION:	[2000] VSC 165

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Costs – Amount recovered in Supreme Court $31,919 for damages and debt – Application of Rule 63.24 – claim for declaration not pursued – application of Rule depends on recovery – additional claim only in the Supreme Court would have failed – no special circumstances – plaintiff's costs on County Court scale.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Colbran QC	T.J. Mulvaney & Co
For the Defendant	Mr I.R. Jones	Deacons Graham & James

HIS HONOUR:

The court handed down reasons for judgment on 7 April 2000 and invited counsel to make submissions with respect to interest and costs.

On that day, after some discussion, the court proposed the following orders should be made –

1.That the defendant pay to the plaintiff the sum of $23,700 plus $6,558.73 damages in the nature of interest.
2.That the defendant pay to the plaintiff the sum of $1,303.32 damages plus $357.50 damages in the nature of interest.

This represented a total recovery by the plaintiff of $31,919.55.

The first order is in respect of a claim for debt, namely, the recovery of a deposit paid pursuant to a contract of sale of land validly terminated by the plaintiff and the second order relates to the amount of damages he suffered by reason of the unlawful repudiation of the agreement by the defendant.

Mr I. Jones of counsel who appeared for the defendant submitted that Rule 63.24(1) of the Rules of Court applied and accordingly the plaintiff was only entitled to his costs on the applicable County Court scale and was obliged to pay to the defendant the additional costs properly incurred by it by reason of the proceeding having been brought in this court instead of the County Court.

Mr M. Colbran QC who appeared for the plaintiff submitted that Rule 63.24(1) did not apply and that the plaintiff should have his costs on the Supreme Court scale.

Before considering the application of Rule 63.24(1) to the proposed judgment it is necessary to briefly outline the progress of the proceeding through the court.

The writ was issued on 12 February 1998. The claim was for the return of the deposit and damages. The prayer for relief sought two declarations, namely –

"1. A declaration that the agreement is rescinded.
2. A declaration that the agreement is void or unenforceable.

In my opinion the declarations were unnecessary. They added nothing to the real claim which was for the return of the deposit and damages.

Very soon after the issue of the writ, the defendant issued a summons on 26 March 1998 seeking an order that…

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: [2000] VSC 165
Decision Date: 3 May 2000

CaseChat Overview and Summary

The plaintiff, Bantick, brought an action against Boss Properties Pty Ltd for damages and debt recovery in the Supreme Court, resulting in a recovery of $31,919. Bantick subsequently applied for costs under the relevant rules of court, specifically Rule 63.24, which governs the recovery of costs in cases where a party has recovered a sum of money. Bantick's application for costs did not include a claim for a declaration, which was initially part of the proceedings but was not pursued. The legal issue before the court was whether the application for costs should be assessed based on the full recovery amount or if the court should consider the fact that one of the claims was not pursued, and would likely have failed if pursued alone.

The court held that the application for costs should be assessed based on the full recovery amount, as the rules do not provide a mechanism to reduce the amount of costs recoverable based on the failure to pursue a separate claim. The court noted that the additional claim was only viable in the Supreme Court and would not have succeeded if pursued independently. The court further found that there were no special circumstances that would warrant a reduction in the costs recoverable. Consequently, the court determined that the plaintiff's costs should be assessed on the County Court scale, reflecting the nature and complexity of the proceedings.

Given the court's findings, the plaintiff's application for costs was assessed according to the County Court scale, resulting in a determination of the appropriate costs recoverable. The court did not find any exceptional circumstances that would justify deviating from the standard cost assessment, and the plaintiff's recovery of costs was calculated accordingly. The final orders of the court reflected the assessment of costs on the County Court scale, without any reduction for the unpursued claim.

Orders