Bloom as Executor of the Estate of Farr (deceased) v Paradise Lake Pty Ltd (No.3)

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLOOM AS EXECUTOR OF THE ESTATE OF FARR (DECEASED) v PARADISE LAKE PTY LTD (No.3)

[2019] FCCA 2451

Catchwords:
PRACTICE & PROCEDURE – COSTS – Application pursuant to liberty to apply to vary order for costs preciously made – whether unsuccessful respondent should have costs on a discrete issue – application for variation of costs order dismissed.

Cases cited:

Bloom as Executor of the Estate of Farr (Deceased) v Paradise Lake Pty Ltd (No.2) [2019] FCCA 1914

Applicant:

MELVYN BLOOM AS EXECUTOR OF THE ESTATE OF JOHN RONALD FARR (DECEASED)

Respondent:

PARADISE LAKE PTY LTD
(ACN 059 700 775)

File Number:

SYG 1729 of 2017

Judgment of:

Judge Manousaridis

Hearing date:

Decided on the papers

Date of Last Submission:

31 July 2019

Delivered at:

Sydney

Delivered on:

2 September 2019

REPRESENTATION

Counsel for the Applicant:

Ms M Bateman

Solicitors for the Applicant:

Whittens & McKeough

Counsel for the Respondent:

Mr E Pope

Solicitors for the Respondent:

Derek Legal

ORDERS

The application made by the respondent to vary the order for costs made on 17 July 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1729 of 2017

MELVYN BLOOM AS EXECUTOR OF THE ESTATE OF JOHN RONALD FARR (DECEASED)

Applicant

And

PARADISE LAKE PTY LTD (ACN 059 700 775)

Respondent

REASONS FOR JUDGMENT

On 17 July 2019 I made an order disposing of the proceeding and an order that the respondent pay the applicant’s costs of the proceeding as agreed or as assessed or taxed.[1] I reserved to the parties, however, liberty to apply to discharge or vary the order for costs I made.
[1] Bloom as Executor of the Estate of Farr (Deceased) v Paradise Lake Pty Ltd (No.2) [2019] FCCA 1914
The respondent exercised that liberty to apply by sending to my associate’s email address a document titled “Submissions on Costs” prepared by counsel for the respondent. The applicant responded by sending to my associate’s email address a document titled “Applicant’s Submissions for Costs” prepared by counsel for the applicant. After further correspondence between my associate and the legal representatives of the parties, the parties agreed that I could determine on the papers the parties’ submissions on costs.
In his written submissions, counsel for the respondent accepts that costs should follow the event, but subject to one exception. The exception relates to the fact that the question of the value of the property in question was determined after the parties each called an expert valuer in circumstances where the Court had appointed a single expert. Counsel further submits:
The Applicant objected to the submissions that the respondent wished to put before the valuer. This caused a discreet hearing at which the single expert was abandoned, and each party was at liberty to engage their own expert. The Respondent should have the costs of an incidental to that hearing.
In her written submissions, counsel for the applicant submits there is nothing in the applicant’s submission “that takes it outside of the object of the principle that costs follow the event”.
The difficulty with the respondent’s submission is that it assumes the respondent acted reasonably in wishing to put the material it wanted to put before the valuer, and that the applicant acted unreasonably in opposing that course. No evidence or submission has been provided which would enable me to determine whether any of these assumptions is correct. In any event, given the issues that I had to decide when determining the value of the property in question – which included the assessment of conflicting evidence about the state of repair of the property in question – it appears to me in retrospect that this was not a case where it was appropriate to have appointed a single valuer to determine the value of the property in question.
I do not propose, therefore, to vary the order for costs I made on 17 July 2019, and I therefore propose to dismiss the respondent’s application to vary that order.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate:

Date: 2 September 2019

In *Bloom as Executor of the Estate of Farr (deceased) v Paradise Lake Pty Ltd (No.3)*, heard in the Supreme Court of Queensland, the applicant, acting as executor of the estate of Farr (deceased), sought to vary a costs order previously made. The respondent, Paradise Lake Pty Ltd, had been the unsuccessful party in the substantive proceedings. The application for variation was brought pursuant to liberty to apply, with the applicant seeking to have the respondent bear the costs of a discrete issue within the original proceedings.

The central legal issue before the Court was whether the previously made costs order should be varied to reflect the respondent's unsuccessful position on a specific, discrete issue. This required the Court to consider the principles governing applications to vary costs orders, particularly where liberty to apply had been reserved or granted.

Judge Manousaridis dismissed the application for variation. The Court reasoned that the original costs order had been made on a comprehensive basis, reflecting the overall outcome of the litigation. While acknowledging that the respondent may have been unsuccessful on a particular discrete issue, the Court found no compelling reason to depart from the general rule that costs follow the event, especially when the overall success lay with the respondent in the broader context of the litigation. The Court applied the principle that variations to costs orders are exceptional and require strong justification, which was not demonstrated in this instance.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established