Bogan v The Estate of Peter John Smedley (Deceased)

In the case of Bogan v The Estate of Peter John Smedley (Deceased), the primary dispute revolves around the costs associated with a group proceeding, specifically focusing on the application for a group costs order. The plaintiffs in the proceeding are seeking a group costs order, which would allow for costs to be calculated as a percentage of the amount of any award or settlement recovered. This case was heard in the Supreme Court of Victoria.

The legal issues that the court had to address included the interpretation and application of the Supreme Court Act 1986, particularly section 33ZDA, which grants the court the power to make a group costs order. The court had to determine whether such an order was appropriate or necessary to ensure that justice was done in the proceeding, considering the open-textured nature of the legislation and the principles that should guide the exercise of the court’s discretion. Additionally, the court needed to consider the funding agreement entered into between the plaintiffs and Equite Capital No. 1 Pty Ltd, a Singapore-based litigation funder, and the implications of this agreement on the calculation of costs.

The court examined the principles guiding the exercise of discretion in making a group costs order, emphasising that the decision should be based on ensuring justice is done in the proceeding. The court acknowledged the complexities and the significant legal costs and disbursements incurred prior to the issuance of proceedings, which justified the funding arrangement. It was noted that the litigation funder, Equite Capital No. 1 Pty Ltd, did not initially intend for the funding agreement to determine the funding commission but rather anticipated seeking a common fund order or a costs equalisation order. The court concluded that the proposed group costs order was appropriate and necessary, taking into account the extensive pre-litigation work and the overall benefit to the funded group members. The application for a group costs order was granted, and the court determined that costs should be calculated as a percentage of the amount of any award or settlement recovered.

The final orders included the granting of the application for a group costs order, with costs to be calculated as a percentage of the gross resolution sum, in accordance with the funding agreement. The court’s decision provided clarity on the application of the Supreme Court Act 1986 and the principles guiding the exercise of discretion in such cases.